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A DIGEST
OF AT.T/ THE KEPORTED CASES,
BOTH IN LAW AND EQUITY,
DETERMINED IN THE
COURTS OF NORTH CAROLINA,
FROM THE
EARLIEST PERIOD TO THE PRESENT YEAR,
TOGETHER WITH
A TABT.K «>K THM NAMi:S t)!" TH K CASKS.
PREPARED BY
A Judge of the Supreme Court.
IN THKKE VOLUMES.
THE FIRST AND SECOND VOLUMES CONTAINING THE LAW, AND THI5
THIRD VOLUME THE EQUITY CASES.
VOLUM K 11.
RALEIGH :
NICHOLS, GORMAN & NEATHERY, BOOK AND JOB PRINTERS.
1866.
DIGEST
VOLUME 11. *
HABEAS CORPUS.
i; In air cases- of habeas corpv s he'iore any judge or court,
where the contest is in respect to the custody of minor children,
either party may appeal, by virtue of the act ot 1858, ch. 53.
Musgrove v. Kornegayy 7 Jones, 71.
2- Where a child, over twelve years old, has been illegally de-
tained as an apprentice, under a deed executed by the father
alone,- the proper order, upon a habeas corpus, is that the infant
be discharged to go where he pleases; but where an infant,
illegally detained, is under the age of twelve, the proper order is
that he'^be restored to his father. Ibid.
3. The courts and judges- of this state have concurrent juris-
diction'with the courts and- judges of the Confederate States, in
the issuing of writs of habeas corpus, and inquiring into the
causes -of the detention, where such detention is by an officer or
agent of the -Confederate States. In the matter of Bryan, 1
Winston, 1.
4. The supreme court has jurisdiction to issue writs of habeas
corpus returnable before itself, and to consider and determine on
the causes of detention. Ibid.
5. Where the object of a writ of habeas corpus is to inquire,
whether there be probable cause of commitment, the decision on
it is not the subject of review by writ of error or certiorari. But
where the question on the writ of habeas corpus is concerning the
power of the committing magistrate or court, or of the legality
of the commitment, the weight of auti;ority is in favor of the
doctrine that the decision is subject of review. Walton \. Gat-
lin, 1 Win St.,. 3 18:
6. The decision on a writ oi habeas corpus, the object of which
is to free a person from restraint, for any other cause than the
commission of a criminal offence, is a judgment, and the subject
of review by writ of error or certiorari. Ibid.
7. The supreme court has the power to review the action ot
1*
G74 HABEAS CORPUS.— HEIRS.
the superior courts, aud of tlie judges in vacation, upon ques-
tions of law in all cases under the naheas eovpiis act, Rev. Code,
ch. 55, sec. 10. Ihkl.
8. A soldier actually and rightfully in the army can have no
relief by the writ of habeas corpus^ against any alleged abuse of
military authority. Cox v. Gee, 2 Winst., 131.
9. If he be lurongfnlly held as ;a soldier, he is not entitled to a
writ of liaheas corpus, while he i-s undergoing punishment, or
awaiting a trial, i§)X a military offence. Ihid.
See (Contempt, 3.)
HEIRS.
1. Where there is judgment and execution against an ances-
tor ill his life time, no sci. fa. is necessary against the heirs or
devisees, but the execution attaches upon the land, and goes
with it to whomsoever it may come. Baiter v. Long, 1 Hay., 1, (2.)
2. Since the statute of 5 'Geo. 2, ch. 7, (Rev. Code, ch. 45, sec. 2,)
the same distinction exists between real and personal property
as before, and lands descended to an heir are not affected by a
judgment against the executor as such; they must be proceeded
ao-ainst by sci. fa. against the heir, if plene administravit be
found for the executor. Balair v. Wehh, 1 Hay., 43, (55.)
3. The heirs are liable in an action of debt, upon the bond of
their ancestor wherein they are named:; altliough there rnay be
personal effects in the hands of the executors. Long v. Balier,
•2 Hay., 128, (21)1.)
4. To an action against an heir on the simple contract of his
ancestor, he may plead that the executor has assets. LQais v.
Shqxtrd, 2 Hay., 218, (390.)
. 5. H" an heir pay debts of his ancestor, lands descended of that
amount shall be deemed to have been purchased by the heir, and
shall not be liable to other debts. Gibson v. WUliams, 2 Hay.,
2S1, (45(1.)
(). As to the other part of the land, it shall be charged, not
;acc<.>fding to its value at the time of the descent to the heir, but
ifs value at the time he sold it. Ihid.
7. On the surplus beyond the amount paid tor the ancestor,
the heir shall not be lial)le for interest. Ibid.
8 Whe)-e an heir had sold lands descended befor a sci. fa. had
issued to (charge them, the purchaser niay, in the name of the
hen-, he permitted to plead to the sci. fa. that the executor has
assets. Hamilton v. Jones, 2 Hay., 291, (474.)
9. If an heir plead to a sci. fa., nothing by descent or devise, and
HEms. 675
it be founcl against liim, judgment shall be d'. bonis piryirlis.
Hamilton v. Sitiuns, 2 Hay., 291, (-475.)
10. Before an heir can be made liable as sncli, it must be shown,
that to the lands descended his ancestor had a good title. Ham-
ilton V. Simms, 2 Hay., 32(5, (49(3.)
11. A judgment of execution against the real estate of a de-
ceased debtor was reversed, because it Avas not found that the
executrix had fully administered, and had no assets, or not suffi-
cient to satisfy the creditor's demand. CardioeU v. Brodie, 1
:\Iurph., 97.
12. A judgment against the administrator creates no lien on
lands descended or devised, and lands bona fide sold by the heir
or devisee, before a sci. fa. sued out against him, are not liable
for the debts of the deceased. JVillianis v. Aslxtiv, 2 ^vlurph., 2^.
(The law in relation to the land ot a deceased debtor is greatly
altered. See Rev. Code, ch. 4(i, sec. 46 and following.)
13. An action of debt will not lie against lieirr, upon a bond
in which they are not expressly named. Taijlor v. Grace. 2
Murph., (36.
14. If lands descended, or devised, have been bona Jide sold
Ijefore a sci. fa. issues, to satisfy a debt of the ancestor, under a
prior lien, they of course are not liable under the sci. fa. If
sold to satisfy the heir's or devisee's own debt, the heir or devisee
is personally liable, as if he himself had sold them, l)ut the land
is not liable". Spaight v. JFade, 2 Miirph., 295. 8. C. 1 Car. L. R.
284. (29.;
15. If the lands have been fraudulently sold before sci. fo.,
and are not, in point of fact, in the hands of the heir or devisee,
the lands are still liable to the demands of creditors. Ibid.
16. When execution issues in such cases, the plaintiff pro-
ceeds at his peril ; he can sell all lands descended or devised,
uidess they have legally passed into other hands. Ibid.
17. A sale of land under aji. fa., which issued and bore te^te
after the death of the debtor dying seized, without any sci. fa.
against his heirs or devisees, conveva no title to the purchaser
Bowenw McCuUock^. C. Term, R'.', 261, (684.)
18. Under the act of 1784, the heirs may plead to a .9c/. fa. to
subject to sale the lands descended, that the executor had not
fully administered, or that he had suffered judgment to be re-
covered by fraud, &c., but the " plea that the lands descended
had been sold to satisfy prior judgments " is totally immaterial ;
and, although the jury may find it true, the plaintiff is entitled
to judgment of execution against the lands descended, as if no
plea had been pleaded. Ti-emhle v. Jones, 3 Murph., 579.
19. The^ proviso in the last section of the act of 1789 does
not prevent an execution from issuing under that act, and the
act of 1784, where one of several heirs is a minor, but only di-
rects that it shall not be levied on the property of the infant de-
!576 HEIRS..
fendant.. Therefore,. where judgment was-obtained against sev-
eral co-heirs, one of whom was an infant, iY was held that the
creditor might sue out his execution and obtain satisfaction from
tlie hands of the adults.. Bank of Ncicbern v. Stanley., 2 Dev.,
47().
20. An execution against the land of an infant, under the acts
of 1784 and 17*59, ought to appear upon its face to have issued
upon motion after a stay of twelve months, otherwise the sherift'
may or may not act upon it, and he will or will not be justified
bv the fact ; but he may levy instanter upon the property of the
adults. Ibid.
21. xVlthough satisfaction of a decree in equity, against an ex-
ecutor who has fully administered, can now be had out of the
lands of the testator, oidy upon a bill against the heirs, yet a sale
under an order made upon a sci. fa. is valid. White v. Albertsori,
H Dev., 241.
22. Where the heirs have land descended from both parents,
a creditor cannot sell that descended from the mother, under a
judgment against that descended from the father, although the
mother held as devisee of the father. Trotter v. jSelby, '6 Dev.,
374.
23. A judgment on a sei. fa. against an heir, when his name
is neither set forth in the writ, nor in the return of the sheriff,
is a nullity,. and a purchaser under it acquires no title.. Bonner
V. Tier, 3 Dev., 533.
24. Where a judgment was obtained against an infant heir, by
sei. fa. under the act of 1789, with a stay of execution for one
year, during which time another creditor commenced suit, and
obtained judgment against the heir, on the bond of his ancestor,
and issued a,Ji. fa. before the expiration of the stay, it was held
that a purchaser under it had a better title than one under a
f. fa., afterwards issue d upon the first judgment. Bichs v. Blovnt,
'4 Dev., 128.
25. The /rov/.9r),, to the last section of the act of 1789, applied
probably only where the guardian had sold property to pay the
debt; but, at all events, it extended only to judgments upon a
sci. fa., not to those in debt upon the bond of the ancestor.
Ibid.
26. Nothing but a writ in debt, or a sci fa., is "an action
brought or process sued," within tke act of 1789, to restrain
alienatio]! by an heir. And process against an heir created a
lien upon the real estate, only as to him, and j)iii"chasers under
him — not as to otlier creditors. Ibid. (The remedy against the
real estate of deceased persons in favor of creditors is greatly
altered. See Rev. Code, ch. 4(5,. sec. 44, and following.)
27. Land cannot be sold under a fi. fa., Avhich issues and bears
teste after the death of the debtor,, without bringing in the heirs
hy S'^i. fa.; although the/, fa. may be an alias, the original of
HEIRS. 677
^which issued- and 'bore teste in the life time- of the debtor. Wood
■v. Harrison, 1 Dev. and Bat., 35'6.
28. A writ from a court, commanding the sheriff to summon A
^^and B, heirs of C deceased, to be and appear, &c., " then and there
to show cause, if any, why D shall not have judgment agamst
the lands of said deceased," in the hands of his said heu's, for $150,
besides interest and' cost," is not such a sci. /a. ^as is rcquu-ed by
the act of 1784, subjecting the real estate of a deceased person
to the payment of liis debts, though a debt may have been pre-
viously established against the administrator, the plea of fully
administered found in his favour, judgment signed,' and an award
of .sfi fa. against the heirs. Barroio v. Arrenton, 1 Ired., 228.
29. 'Such a Avrit does not set forth nor refer to a judgment i)re-
viously rendered in any action for any person, and of course_ does
not call on the heirs to show cause A^"hy execution on that judg-
ment shall not issue against the lands descended to them. And,
where upon the return of such a writ, judgment by default was
entered upon the record, and an award of execution against the
lands in the hands of the heirs, held that the judgment was a nul-
lity, and that a purchaser at the sheriffs sale, under an execu-
tion issuing upon it, acquired no title. Il/itL
30. Although a sci. fa. against heirs and ferreienants need not
name them, but leave "it to the shcriflf to summon and return
them, yet the judgment is always against particular persons.
and the writ of execution muftt name the same. persons. Bobert-
mn V. WooUard, 6 Ired., 90.
31. An execution commanding the sheriff to sell the lands _oi
A. B. "in the hands of his heirs"" wuthout naming them, is void,
and a sale under it confers no title. Ibid.
32. A sale of land, under a fi. fa. bearing fc^^/e alter the death
of the defendant in the execiition, where his heirs have not been
made parties, is void. Staie v. Pool, 6 Ired., 288.
33. Where a judgment is against heirs for lands descended,
after a plea of fully administered has been found in favor of the
administrator, and the execution issues against the goods aiid
chattels, lands and tenements of the heirs, the execution is void.
Walker v. Marslmll, 7 Ired., 1.
34. Under the statute du-ecting that, upon judgments against
infant heirs, the execution shall be stayed twelve months, the
guardian of the infants has a discretion to waive the stay, an^^
permit the execution to issue instanier, and the sheriff is bound
to proceed under the execution. Heath v. Latham, 7 ired., 10.
35. Where the plea of fully administered is found in favor of
the administrator, and upon a sci. fa. against the heirs, they come
in and plead that the administrator has assets, it icas held that,
■upon the trial of the issue upon that plea, the hen-s may give ev-
edeuce of any assets received by the administrator, either before
678 HEIRS..
/<
or after tlie trial of tlie original suit, and up to the time of tlie
plea pleaded to the sci. fa. Carrier v. Hampton, 11 Ired., 307.
oG. The county court, on the petition of a guardian of a cer-
tain infant, passed the following order: "Ordered that he, the
said W. B., guardian, sell the land of the said deceased T. H., or
so much thereof as will be sulficient to discharge the debts," it
was held that this order was unauthorized and void, and of course
that a purchaser under it acquired no title. Bucket v. Shnner,
11 Ired., 431. .
37. Til ough in the case of a. J?.. fa. for the sale of the lands of a de-
ceased debtor, the heirs should be named, yet this is not neces-
sary when the writ is a ve7id. expo., the land having been ascer-
tained bv the levy and return of a constable. JSjiiith v. Bryan,
12 [red., 11.
38. The question who are the heirs of a deceased person is one
of law to be decided by the conrt, and not of fact to be left to
the jury. Bradford v. JEnui7i,A2 Ired., 291.
39. Jn a proceeding by sci. fa. against heirs to subject the real
assets of a deceased debtor, any one of the heirs can tender
a collateral issue to the administrator, and, if it found against
the administrator, the creditor would have execution against
him for the sum thus found in his hands, which would necessarily
operate to the exoneration pro to??toof allthe real estate descended.
Carrier v. Hampton, 13 Ired., 436.
40. A sale of land by a guardian, under an order of the coun-
ty court, which was made without the court ascertaining that
there were debts of the ward making the sale necessary,
and wliich did not designate with certainty the land intended to
])e sold, is void, and the purchaser acquires no title. Spridll v.
Davenport, 3 Jones, 42.
41. An order of the county court, authorizing a guardian to
sell the land of his ward, under the act of 1789, Eev. Stat., ch.
63, sec. 11, must find and adjudge that there are debts against
the ward, which render a sale necessary; but the amoimt of the
debts, to whom due, or other particular description, is not essen-
tial to the validity of the order. Pendleton v. Trnehlood, 3 Jones,
96. (See Kev. Code, ch. 54, sec. 34.)
42. An order " to sell the land of the ward named in the pe-
tition, adjoining the lands of J. B. and others, containing about
one hundred and ten acres," is a sufficient specification of the
land under the act, when it appeared that the ward had no other
land. Hrid.
43. AVhat constitutes an heir at law is strictly a question of
law; but the facts, on which the question ari-ses, must be left to
the jury. Hence, it is proper to leave it to them to say, from the
Testimony, whether a particular person died without children,
before the act of 1784, and whether anotb-ier was. his. eldest
jaephew. ErnuM v. Whitford,. 3 Jones^ 474..
HEIRS.- 679-
44. The land of an infant can be sold by an order of the county
court only for the debt of his ancestor, and not for his own debr.
and, to inake the sale valid under an order to sell for the debt of
his ancestor, there must be an adjudication of the court that
there was a debt of the ancestor against the estate of the peti-
tioner's ward. Cqfjidd v. McLean, 4 Jones, 15.
45. Where a petition to sell lands, by a guardian, alleged that
there was a debt of the ancestor of his ward, for which he was
liable as heir, and the land was described by calling for coter-
minous tracts, and the court adjudged, upon the testimony of a
competent witness, that the facts of the petition were true, and
made an order to sell the land, it was- held that the sale was good.
Bryan v. Manning, G Jones, 3o4.
46. Where the' guardian of one of two joint owners- of land
petitioned for the sale of the whole of it, without noticing the
existence of the other tenant in common,, it was hdd that the
sale was good as to one-half the land, and the purchaser, though
taking a deed for the whole, acquired title to only one-half, as
tenant in common with the atlier owner. Ibid.
47. When an ancestor dies intestate, his heirs take by posi-
tive law, and the course of descents cannot be altered by words
in a deed excluding particular heirs, or by any agreement of par-
ties. Cannon v. Noivell, 6 Jones, 43G.
48. There is no presumption of law, that a person, bearing the
same name with one of the sons of a deceased owner of land, is
the heir, or one of the heirs, of such deceased owner; but the
question of identitj'^ is one of fact, to be detei-mined by the jury
upon the concomitant circumstances, such asths identity of name,
residence of the claimant, and that of other members of the
family, the price paid for the land compared with its value, and
the facility with which the ixlentity might be proved, if it ex-
isted, and other circumstances. Freonanr. Loftis, 6 Jones, 524.
49. The purchaser of land, sold under an order of court for
the payment of debts of the deceased, on the petition of the ad-
ministrator, who was also the sheriff of the county, and, as such,
served the notices on the heirs at law, loas held not to be affected
by such irregularity, nor by the fact that the petition had not
been sworn to, he not being a party to the proceeding. Overton
V. Crawford, 7 Jones, 415.
See (Execution — Of void and irregular executions, and pro-
ceedings to set them aside, 13.) (Executors and Administra-
tors— Of their liability to creditors, &c., 32.) (rludgment — Of
judgments against executors, administrators and heirs, 1.)
(Judgment — Of irregular, void and erroneous judgment, 11.)
(Justices of the Peace — Of their jurisdiction, judgment and exe-
cution, 71-72.) (Limitations — As to real estate, 16.) (Plead-
ing— Oi scire faciaa, and the pleadings thereon, 3-7.)
•680 HIGHWAY,
HIGHWAY.
1. By the act of 1784, the interposition of a jury is necessary
in the laying out, altering or changing of roads ; but in deciding in
the first instance whether there shall be a highway in a particu-
lar section of the county,- or in discontinuing one which is use-
less, the jury have nothing to do, the whole power l>eing given
to the court. Carr v. Hairstoji, ICar. LawRepos., 249, (20.)"^ (See
Rev. Code, ch. 101, sees. 1, 2.)
2. The county courts of two adjoining counties having been
authorized, by act of assembly, to appoint commissioners to lay
out a road, and one J. H. having been authorized to erect toll
g-ates on it and to take tolls, the report of the commissioners, as
to the discharge of their duty, was set aside, because the person,
across whose land the road was laid out, had not had notice of
their proceeding. Saicyer v. Hamilton, 1 Murph., 253.
3. The overseer of a public road is subject to indictment, if he
neglect to keep up sign boards, as directed by the act of 1784.
State V. jsicholsoj}, 2 Murph., 135. fSecRev. Code, ch. 34, sec.
,39, and ch. 101, sec. 18.)
4. An overseer, of a public road must be served with notice of
his appointment ten davs. before he is liable to be indicted. IState
V. 'Everitt, 2 Car. L. R., V)33, (4301)
5. By act of the legislature, commissioners may be appointed
to inspect a turnpike road, and it may be dircted that, upon their
report, an indictment may be instituted against the stockholders;
and (m the trial of the indictment, the evidence of the commis-
sioners is admissible and sufficient, if the jury believe them, to
convict the proprietors. State v. Hmvorth, 1 Hawks, 346.
6. Where water was, bythe erectioii of a mill, thrown upon a
highway, and the' former owner of the mill had built bridges
over the water, which, during his ownership, he repaired, and
which were also repaired by the present owner, who did no
other work on roads, it tvas held that the present owner was liable
in damages to a person who was injured by a defect in one of the
bridges, and that the enquiry Avas properly left to the jury,
whether the mill or tiie road were the more ancient. Miilhol-
lamd V. Broivnrig, 2 Hawks, 349.
7. Where the proprietors of a puljlic bridge, in order to draAv
travellers from a public ferry, open a private road, by the per-
mission of the owners of the soil above the ferry, leading to the
foot of the bridge, and erect a small bridge on such private road
over an intervening creek, they are not indictable for any defect
in the small bridge. State v. Seaivell, 3 Hawks., 193.
8. Where a party appeals from the decision of the county
..court laying off a \road :over 'his 'lands, and the superior court
HIGHWAY. 681
orders it to be laid off according 'to his wish, he shall not pay
the costs of the petition. Harris v. Coltraine, 'd HaAvks., 312.
9. The twenty days previous notice of tlie filing of a petition
for a public road cannot be objected, by a person who has come
forward and opposed the petitiorj, continued the cause and ap-
pealed to tlie superior court; because his conduct shows that he
had ample notice. Little v. 3Iay, 3 Hawks., 599.
10. A railroad company is a private corporation, its effects
and emoluments being private property, but the road construc-
ted by them will be a pul^lic highway. Davis v. Raleigh and
Gaston Railroad Company, 2 Dev. and Bat., 451.
11. In taking private property for the use of the public, as for
a public highway, the legislature is not restricted to a mere
easement in the property, but may take the entire interest of the
individual, if, in the opinion of the legislature, the public exi-
gency requires it. Ihid. ^
12. If a road be established as a highway by an eiToneoTis
judgment of the county court, it will be a nuisance to obstruct
it, until the judgment is reversed. It is enough that the way
obstructed is a public road de facto, to constitute the obstruction
of it a public nuisance. But where the proceedings to change a
road state no road as having been prepared; nor describe where
the altered road is to run, except that it is to be brought nearer
a particular house; and the prayer is only that an order may be
made " for turning the road," and then an entry appears that
" said report Avas confirmed and duly entered of record," there
is no sufficient judgment for establishing the road as altered,
and it is no nuisance to obstruct it. State v. Spainlwui\ 2 Dev.
and Bat., 547.
13. In a petition to turn a road under the act of 1834, it must
appear that the road proposed to be changed, as well as that of-
fered to be substituted, is wholly upon the land of the peti-
tioner; the freeholders must also be sworn, and the overseer
have notice. Ibid. (See Eev. 'Code, ch. 101, sec. 6.)
14. The common law mode of creating and establishing a
public highwav is not repeale by any of our acts of assembly.
Woolard v. McGullough, 1 Ired., 432.
15.. The ii&tir of a road as a public highway for twenty years,
Avill, under the circumstances of a case, authorize a jury to pre-
sume a dedication of the road, by the proprietors of the soil, to
the use of the public. Ihid.
16. Where a road is opened by an order of the county court,
according to law in every respect, except that no damages were
assessed by the jury to the owners of the land, none but those
owners can impeach the order for that cause. Ihid.
17. An overseer of a public road can require no hands to work
on his road, unless they live within a district whieh has been
682 HIGHWAY.
designated for him by the county coiu't,. or unless they have
been specially assigned by the court to work on his road. Ihid.
IS. When a road has been laid off by order of a county court,
and the jury have returned a report which has been confirmed
and an appeal taken to the superior court, it is too late to take ex-
ceptions to the jury. The objection should have been made in
the county court upon the return of the jury, by a motion to
quash the proceedings of the jury. After a decision of the
county court upon the merits, the superior could, upon an ap-
peal, determine oidy upon the merits. Fiercy v. Morris, 2 Jrecl,
168.
19. In a petition to turn or change a public road, it must be
alleged that the new road is necessary, or would be more usefvd
to the public ; otherwise the petition will be dismissed. Leath
V. Summers, 3 Ired., 108.
20. The mere appointment of an overseer and assignment of
hinds to a supposed roacl, by the county court, are not ^jer se a
judicial determination that a public road be laid out where none
before existed. And any inhaWtant so a,ssigned, when sued for
the penalty incurred for refusing to work on such road, and the
overseer iu dieted for not haviiig the road in order, may show
that in fact there is no such public road. Baker v. Wilson, 3
Ired., 168.
21. Where an individual appropriates land for a public high-
way, much less time than twenty years will suffice to make it
a public road; for it is rather the intention oi the owner, than
the length of time of the user, which must determine the fact of
dedication. But a county court cannot dedicate or appoint a
public road, in any other manner than that authorized by law.
Stafe V. Marble, 4 Ired., 318.
22. Where a road has been used by the public as a highway
for twenty years, and there is no evidence how this user com-
menced, a presumption of law arises that this road has been laid
off and established as a public road, by due course of laAv; but a
possession or 2iser for less time than twenty years will not raise
this presumption. Ibid.
23. There may be a public road de facto, and the only person,
who can question the right to such a road, is the owner of the
land; and the owner can only be bound by a proceeding against
him according to the law of the land, or by an user for twenty
years, from which such proceedings will ordinarily be pre-
sumed. Ibid.
24. So, also, no presumption of a legal authority to erect a gate
across a public road can arise, in a less time than twenty years,
from the actual erection of the gate. Ibid.
25. Where a road has been used by the public for twenty
years' without obstruction or hindrance,, a grant from, the own»
HIGHWAY. 683
ers of the land over which the road passes may be presumed.
State V. Hunter, 5 Ired., 3G9.
20. The county court has no authority to discontinue any pub-
he road, but upon the petition of one or more persons, filed in
the court, and the other necessary proceedings prescribed in the
act; and any order for discontinuing a pubhc road,, made other-
wise than as the act directs, is Toid. State v. SJaiford, 6 Ired.,
162. (See Eev. Code, ch. 101, sec. 2.)
27. The county court has full power to order the laying- out of
public roads, but none to lay them out, as that power is given to
a jury. Welch v. Piercy, 7 Ired., 365.
28. The county court has the power to decide whether the
public convenience requires the layiug out of aroad, and to or-
der a jury for the purpose of laying it out; but it. has no power,
except as to the termini to direct the jury, or any one else, ]Mv
it shall run, that being the exclusive province ol the jury, their
verdict being, of course, subject to the judgment of the court,
whether it shall be received or not. Ibid.
29. An order of the court directing how a road shall be run and
opened, does not justify an overseer who acts under it, and he
is liable to an action by the jjarty aggrieved. Ibid.
30. Where a person resides in another state during the great-
er part of tlie year, but has a domicil in this state, in which he
also resides three or four months of the year, during which he
keeps slaves here, he is liable, during the time he resides in tliis
state, to be required to send such hands to w-ork on the public
road, as are required by the act of assembly on that subject. But
persons merely passing through the state, or visiting it for pur-
poses of profit or pleasure, and remaining for days, weeks, or
even months, without having any fixed home here, are not per-
sons whom the overseers of the roads are authorized to summon
as being witiiin their districts. Cantrell v. Pinhiey, 8 Ired., 436.
(See Eev. Code, ch. 101, sec. 9.)
31. An overseer of a public road has no right at his discretion
to widen the road» as this can only be done by a jury ruider the
direction of the county court. Small v. Eason 11 Ired-, 94.
32. In an action to recover a penalty for not working on a
road in Wilkes county, laid off by commissioners under the act
of 1846, ch. 100, it is necessary to show that the commissioners
were duly sworn as the act directs. Calvert v. Whittington, 11
Ired,, 278.
33. If the w^eather be so bad as to prevent an overseer of a
road from working on it, or to render unavailing any work he
might do, he ought to be excused. State v. Smcdl, 11 Ired., 571.
34. Where a charter has been granted for a turnpike road, and
the road has been opened, the county court has no right to con-
vert it into a public road, unless the charter has been duly sur-
rendered, or, from a non-user, foe twenty years,, a dedication to
68^4 HIGHWAY.
tlie public may be presumed. And, even in such a case, the roafi
can only be made a public one in the manner prescribed by.
statute. The mere appointment of an overseer will not be suffi-
cient for that purpose. State v. Johnson, 11 Ired., 647.
35. It setms ihsii t\\Q establishment of a highway may be in-
ferred b}^ the jury from the use of it as such for twenty years,
although the time and manner of the wseris shown to have been
under imperfect and irregular legal proceedings. State v. Card-
iveU, Busb., 245.
36. By an appeal from the judgment of the county court upon
a petition to lay out a public road, the superior court acquires
full possession of the cause, with power to proceed to a final
judgment and hearing. Therefore, when the county court dis-
missed such a petition, and the petitioners appealed, it 2cas held
tlmt the judge of the superior court, being of opinion that the
prayer of the petition ought to be granted, properly ordered a
jury to lay out the road, instead of awarding a procedendo to the
county court. Shqffner v. Fogleman, Busb., 280.
37. Highways are laid out for public convenience, and, there-
fore, should not be altered, unless the interest of the public re-
quire it. Kenedy v. Erwin, Busb., 387.
38. The power to exempt hands from working on the public
roads is restricted to a court consisting of seven justices. Forhes
V. Hunter, 1 Jones, 231.
39. An overseer of a public road is liable, in an action on the
case, for special damages -sustained by a person, on account of
the road's being out of repair. Hathawmj v. Hinton, 1 Jones, 243.
40. The establishment of a road district, or the assignment of
hands to work on a public road, can ordy be made by an order
of the county court, and no acquiescence in the authority of an
overseer, by working under him upon a road, can amount to a
presumption that the district was laid off, or that the person thus
acquiescing had granted the power to another of compelling him
to work on the road. Tarldnrjton v. McRae, 2 Jones, 47.
41. It is irregular, upon the hearing of exceptions to the report
of a jury ordered to lay off a public road, for the court to con-
sider of the propriety of such order. Anders v. Anders, 4 Jones,
242.
42. Where it was shown that a road had been opened in con-
sequence of an award of a church, upon a controversy between
two of its members, for which the person who wanted the road
was to pay the owner of the land a price in money, and that such
person had used the road, as of right, for more than twenty
years, it •ivas held that jyrima/acie it was but a private way, and
that a long and general use of it by the public, in the absence of
any proceeding in court to have it laid out, and overseers ap-
pointed over it, was not sufficient to change it into a public roaci
Davis V. Ramsey, 5 Jones, .236.
HIGHWAY.— homicide: . 685"
4S. A roadonly one mile long, and from ten to fifteen feet
^vide, leading from a highway \o a church, and having been
used by. tlie neighborhood. for sixty years, in going to and from
the church, and which connects with a country road leading to
a mill and a railroad station, but which had never been under
the charge of an overseer, nor worked as a public highway, is
not a public high\vay,-so as to subject. a person to an indictment
for ob.structing'it. State v. 3IcJ)anieI, 8 Jones, 284-
44. The Eev. Code, ch. 101, sec. 15, gives to overseers of roads
power to cut poles, &c., on any land adjoining his section of the
road, for the purpose of making causeways, &c., and if he act
in good faith, he is not confined to the land immediately adja-
cent to the spot w^here the causeway, &c., is to be made. Col-
lins r. Creecy, 8 Jones. 333.
45. The inference, from evidence tending to show that a M'ay
over and through a man's land is a public road, may be rebutted
by evidence of "/lor. user for more than twenty years. Burgwyn
v. Lockhart, 1 Winst., 269.
See (Common Schools, 3.) (Costs— In civd proceedings, when-
the plaintiff pays costs, 12.) (Evidence— Records of courts; the
proof and effect of them, 24.) (Indictment — In what cases an
nidictment will lie, 15-57-B7-73-83.) (Indictment— Form and
matters relating thereto, 117.; (Penal Statutes, 8-9.)
HOMICIDE.
1. A person, who was violently beaten and abused, made-
his escape, ran to his house eighty yards off", got a knife,. ran
back, and upon meeting the deceased stabbed him, it seems he
was only guilty of manslaughter. If, upon the second meeting,
the prisoner had disguised the fact of having a weapon, for the
purpose of inducing the deceased to come within his reach, the'
killing would have been murder. The distinction between mur-
der and manslaughter elaborately explained. State y. N orris,
1 Hay., 429, (495^
2. If a free servant refuse to obey the commands of his mas-
ter, and the master endeavor to exact obedience by force, and
the servant offer to resist by force, and the master kill, it is
neither murder nor manslaughter; a A r^ior, the law is so in
the case of a slave. State v. Weaver, 2 Hay., 54, (216.)
3. If a prisoner be convicted of manslaughter, and the court
think he is a dangerous man, it may order him to give secu-
rity for his good behaviour for five years. State v. Parish, 2.
Hay., 73, (240. X
686 HOMTCIDE.
4. If a slave violoTitly shove a white man so 'that lie falls, or
is iu damger of falling, and he rises and immediately shoots the
slave, the killing is manslaughter. State v. Piner, 2 Hay., 79,
(247.)
5. The statute of 21st James 1st, ch. 27, being repealed in this
state, the concealment 'of the birth of a base begotten child could
not be given in evidence, as a strong presumption of the murder
of the child by its mother. State v. Jeffreys, -3 Murph., 480.
6. One convicted of wilfully killing u slave, with malice pre-
pense, is guilty of murder, and not entitled to benefit of clergy.
State V. Scott, 1 Hawks, 24.
7. If, after mutual alter^cation and abuse, one of the parties
strike the other a violent blow, and they are separated fbr a
minute, and the stricken man suddenly stab the other with a
knife which he had not before shown, it will be a case of man-
vslaughter and not murder, provided death ensues. State v.
Yarborongh, 1 Hawks, 78.
8. Necessity distinguishes between manslaughter and excusa-
ble homicide, and not between manslaughter and murder. Ihid.
9. The whole design of the act of 1817, to punish the homi-
cide of a «lave, was to make it manslamjMer, and to punish it as
such ; it does not go further, and determine the degrees of the
liomicide, but leaves them to be determined by the common liiw.
State V. Tackett, 1 Hawks, 210.
10. At common law, and between white persons, a sligld blow
will not excuse a homicide ; nor will mere words extcmtate it to
manslaughter. A blow amounts to a legal provocation, though
it does not threaten death ; and if he, on whom an assault is made
with violence, or circumstances of indignity, resent it immediate-
ly, by killing the aggressor, and act therein in heat of blood,
and under that provocation, it is but manslaughter. 1 bid.
11. The general rule may be laid down, "that words are not,
but blows are, a sufficient provocation to lessen the crime of
homicide to manslaughter." From this, there are a few excep-
tions depending upon peculiar circumstances. Ihid.
12. But it exists in the very nature of slavery, that the rela-
tion between a white man and a slave is different from that be-
tween free persons; and therefore many acts will extenuate the
homicide of a slave, which would not constitute a legal provoca-
tion if done by a white person. Ibid.
13. A killing on a sudden quarrel, to avoid a great bodily
harm, is a homicide under circiimstances of legal provocation,
and though such circumstances cannot justify or excuse the act,
yet, on account of human frailty, it shall be deemed no more than
manslaught<ir. State v. Roberts, 1 Hawks, 349.
14. A well grounded belief, that a known felony is about to
be committed, will extenuate a homicide committed to prevent
HOMICIDE. G87
the felony, but not a homicide committed in pursuit, by an indi-
vidual, of his OT\-n accord. State v. Bntherford, 1 Hawks, 457.
15. If death do not take place within a year and a day of the .
time when a wound was inflicted, the law draws the conclusion
that 'it was not the cause of the death, and this cannot be con-
tradicted. State V. Orrell, 1 Dev., IcUrL
16. A homicide may be justified when it takes place to prevent
a threatened felony, but not when inflicted as a punishment for
one already committed. State v. Roane, 2 Dev., 58._
17. To justify the homicide of a felon in endeavoring to arrest
him, the slayer must show not only a felony actually committed,
but also, that he avowed his object, and that the felon refused
to submit, and that the killing was necessary to make the arrest.
Ihiil
18. Provoking language does not justify a blow, and if one be
struck with an instrunient calculated to produce death, the
slayer is guilty of murder. State v. MernlU 2 Dev., 269.
19. Malice is presumed from the nature of the instrument, and
from the want of legal provocation, and it is a matter of indiffer-
ence whether the temper of tlie prisoner be mild or violent, and
it is erroneous to permit evidence to be given, by the State, of
such temper. Ihid.
20. If an apprentice fly from the chastisement of his master,
who pursues him with unlawful violence, and, in the pursuit, is
killed, the apprentice is not guilty of murder. So of a person
guilty of a misdemeanor, flying from an officer. State v. Will,
1 Dev. and Bat, 121.
21. It is not the criterion of a legal provocation that the offen-
sive act is an indictable oflence. Ihid.
22. If one man assails another, and is about to commit an
unauthorized act of violence upon him, and a third person inter-
poises to prevent it, and is killed by the assailant, it is murder.
State V. Benton, 2 Dev. and Bat., 196.
23. Where one goes to the house of another in a peaceable
manner, Avithout offering or threatening violence to his person or
dwelling, and, upon being ordered off and not going immediately,
is killed by the owner of the premises, the slayer is guilty ©r
murder, although it be proved that he had previously forbidden
the deceased from coming on his premises. State v. Smith, 3
Dev. and Bat., 117.
24. It is ordinarily true, that an actual intent to kill is involved
in the idea of murder. But it is not always so. If great bodily
liarm be intended, and that can be gathered from the nature of
the means used, or oMier circumstances, and death ensue, tho
party will be guilty of murder, although he may not have inten-
ded death. State v. Hoover, 4 Dev. and Bat., 365.
25. When a man makes an assault, which is returned with a
violence manifestly disproportionate to that of the assault, the
688 HOMICIDE..
character of'tlie combat is essentially chaTiged, and the assault--
ed becomes in his turn the assailant; and if the person who
made the first assault, in the transport of passion thus excited,
and without previous malice, kill his ad'v'^rsary, the proper in-
quiry as to the degree of his guilt is not, whether he was pos- ■
sessed of deliberation or reflection, so as to be sensible of what
he was then about to do, and intentionally did the act, but
whether a sufficient time had elapsed after the violent assault
upon him, and before he gave the mortal wound, for passion to
subside, and reason to re-assume her sway* for if there had not,
he would be guilty of manslaughter only. State v. Hill^ADev.
and Bat, 491.
26. If a man assault another with malice prepense,- even
though he should be driven to the wall, -and kill his adversary
there to save his own life, he is guilty of murder. Ibid.
27. Where two persons have formerly fought on malice, and
are apparently reconciled, and fight again on a fresh quarrel,
it shall not be intended that they were mov^d by the old grudge,
unless it so appear from the circumstances of the aflair. J bid.
28. If one began an affray, or even if he did not begin, but
was assaulted first,. and then a combat ensued, he could not ex-
cuse himself as for killing in self defence, unless he quitted the
combat before the mortal blow was given, (if the fierceness of
his adversary permitted,) and retreated as far as he might with
safety, and had then killed his adversary of necessity to save
his own life. Ibid.
29.- Words of reproach, or contemptuous gestures, or the like
offences against decorum, are not a sufficient provocation to free
a party killing from the guilt of murder, where he uses a deadly
weapon, or manifests an intention to do great bodily harm.
This rule, however, does not obtain where, because of such in-
sufficient provocation, the parties become suddenly heated, ond
engage in mortal combat, fighting upon equal terms. Ibid.
30. Although there be a. legal provocation, yet a homicide
will be murder, if committed under such circumstances ot cruelty
as manifest the thoroughly wicked heart. And cruelty, when
the fact,^,SYom which it is to be inferred, all distictly appear, is an
inference of law, and, therefore, properly drawn by the court.
But where no more is stated than,- that several blows were struck
with a stick of curled hickory, of the ordinary size, and with the
larger end thereof, without stating more of the nature of those
blows than that one of them was mortal, the facts are not so set
forth as to leave the question as one for legal inference. State
V. Jarrott, 1 Ired., 76. #
31. If the weapon, with which the homicide was committed,
were not of the character called deadly, that is, likely to produce
death or great bodily harm, the homicide would not be murder,
although committed vdtbout legal provocation. And there are
HOMICIDE. e8&
many cases in "u-hicli the conrt can distinctly see,, ia-om the na-
ture of the instrnme^it nsed, whether it be of a dearlly character
or not ; and therefore need not that tlie jury should direct-
ly find the iactfor their information. But where it only appears
that the weapon used was a stick of curled hickory of the ordi-
nary size, and that the slayer struck with the larger end thereof,
it falls peculiarly in the province of the jury to ascertain wheth-
er such a weapon, so used by the slayer, was likely to produce
fatal consequences. Ibid.
32. When a deliberate purpose to kill or do great bodily harm
is ascertaired, and there is a consequent unlawful act of "killing,
the provocation, whatever it may be, Avhich immediately pre-
cedes the act, is to be thrown out of the case and goes for noth-
ing, unless it can be shown that this purpose was abandoned be-
fore the act was done. State v. Johnson, 1 Ired., 354.
33. There is no such thing in law as the killing with malice,
and also upon the furor brevls of passion ; and provocation fur-
nishes no extenuation unless it produces passion. IMalice ex-
cludes passion. Passion presupposes the abK<ence of malice. In
law they cannot co-exist. Hid.
34. ^Vhen the existence of deliberate malice in the slayer is
once ascertained, its continuance, down to the perpetration of
the meditated act, must be presumed, until there is evidence to
repel it. There must be some evidence to show that the wicked
purpose had been abandoned. Ihid.
35. Provocation never disproves malice ; it only removes the
jjrcsnrnpfion of malice, which the law raises without proof A
malicious killing is murder, howeve]- gross the provocation. Ibid.
3(x If A, from previous angTy feelings^ on meeting with B,
strike him with a whip, with a view of inducing B to draw a
pistol, or believing he will do so in resentment of the insult, and
determines, if he does so, to shoot him as soon as he draws, and B
does di-aw, and A immediately shoots and kills him, it is a case
of murder. State v. Martin. 2 Ired.,. 101.
37. It isi not error in the judge to tell the jury, on a trial for
murder, that "if they believed from the evidence, that the pris-
oner had malice against the deceased,, on the morning of the day
when the killing occurred, and there Avas no evidence that sucli
malice was abaiid(jned,. even if the prisoner accidentally fell in
Avith the deceased, the Ojuestion of manslaughter could not arise,
as the malice would excludeprovocation ;" it being clear, from the
context of the charge, that the malice spoken of was the purpose
to Mil,' or do great bodily harm to the deceased. State v. Tilly, 3
Ired., 424.
38. Although one persoii may not go in r^eareh of, or lie in
wait for, another whom he kills, yet if he have formed the pur-
pose to kill him, and,withiii a short time after forming and avow-
ing such jwirpose, he, duly armed, meets the other by chance
2*
690 HOMICIDE.
whether in public or in secret, and slays hii-^ immediately, there
is a presumption that he did it on the previous purpose and
grudge, if there be no evidence of a change of purpose. Ibid.
39. If one seek another and enter into a light with him, with
the purpose, under the pretense of lightiiig, to stab him, and
he do so and kill him, it will be clearly miu'der in the assailant,
no matter what provocation was apparently then given, or how
high the assailant's passion rose during tlie combat; for the mal-
ice is express. State v. Love, 4 Ired., 113.
40. In a case of homicide, where it appeared that the deceased
had threatened the prisoner about three Aveeks before, that he
would kill him; that they met in the street in a starlight night
when they could see each other; that the deceased pressed for a
fight, but the prisoner retreated a short distance; that wdien the
deceased overtook him, the prisoner stabbed himivith some sharp
instrument which caused his deatli, and that, at the time of
this meeting, the deceased had no deadly w^eapon, it ivas held \o
be a case of murder. State v. Scott, 4 Ired., 401).
41. In a case like the above, to mitigate the offence from murder,
it must appear, from the previous threats and the circumstaiK-cs
attending the rencountre, that tlie killing was in self-defence.
lUd.
42. Where the deceased intended only a fight without weapons,
and that was known to the prisoner, and tlie prisoner drew his knife
wuthout notice to the deceased, even if they actually engaged in
the fight, the stabbing of the deceased by the prisoner would be
unu'der. Ihid.
43. The belief, that a person designs to kill me, will not pre-
vent my killing him from being murder, unless he is making
some attempt to execute his design, (jr, at least, is in an appa-
rent situation to do so, and thereby induces me reasonal)ly to
think that he intends to do it immediately. Ibid.
44. On a trial for murder, the question of provocation is prnjjur
for the decision of the court; for whether certain facts amount
to a sufficient provocation to palliate a killing from nnirder t(!
manslaughter, is entirely a question of law. State v. (Jratoyi, H
Ired., 104.
4;"). When a man is vnJairfidhj restrained of his lil)erty, and
Jcills the aggressor, the offence is only manslaughter, vniless at-
teiided with circumstances of great cruelty and barbarity. \\n\
when the restraint is upon one man by another, so far as to pre-
vent the former from doing what the latter may lawfully resist
his doing; and the person restrained in that manner and for tliat
cause kills the other, it is murder. Thus, if a husband use com-
pulsion, as he may lawfully do, to regain the possession of his
wife from one who, he has reason to suspect, has committed, or
is about to commit, adultery with her, and the husband be killed
in the attempt by the wrongdoer, it will be murder. Ibid.
HOMICIDE, 691
41). Whether an iustruiuent, by which death is caused, if it bo
in fact as described by the testimony':, be one by which death
may or may not be probably caused, is ii question of general
reason, and therefore proper for the court; and it' it be doubtful,
whether it Avould probably cause death, the court should direct
a conviction lor manslaughter only. IbicL
47. Nothing-, short of a husband's finding a man in the very
act of adultery with his Avife, will extenuate the killing of the
adulterer from murder to manslaughter. Hence, it is not admis-
sible, because immaterial, to prove that the deceased had been
in the habit of committing adidtery with the wife of the pris-
oner. State V. JoJrit, S Ired,, odd
48. Voluntary drunkenness Avill u^ot excuse, or extenuate, a
homicide committed by a man, otherwise sane, while actino- un-
der its influence. Ibid
49. It is perfectly settled that no Avords or gestures, nor any
thing less than the indignity of a battery, or an assault at least,
Avill extenuate a killing to manslaughter; and, to constitute an
as.sault, there must he an attempt or offer to strike, by one Avithin
sti-iking distance. State y. Barfield, 8 Ired., 344.
')( ). The question, Avhether the Aveapon, Avith which a homicide
has been committed, is a deadly one or not, is Ibr the court, and
iiot for the jury. State v. Collin^,; 8 Ired., 407.
51. In an indictment for homicide, it is the province and duty
of the court to inform the jury, upon the supposition of the
truth of the facts, as being agreed on or found by the jury, Avhat
the degree of homicide is. ibtate v. Hildrttli, 0 Ired., 4:2ii.'
b'l. Where persons hght on fair terms, and after an interval,
bloAvs having been given, a party draAvs, in the heat of blood, a
deadly instrument, and inflicts a mortal injury, it is manslaugh-
ter only ; but if a party enter a contest, dangerously armed, and
liglit under an unfair adA^antage, though mutual blows pass, it
is not manslaughter, but murder. Ihtd.
b'6. If one, Avho is present and sees that a felonious homicide
is about to he committed, in no manner interferes, he does
not thereljy participate in the felony committed. Every person
may, upon such an occasion, interfere to prevent, if he'can, the
perpetration of the felony, but he is not bound to do so at the
peril, otherAvise, of partaking of the guilt. It is necessary, in
order to make him an aider and abetter, that he should do or
say something, showing his consent to the felonious purpc.se.
and contributing to its execution. State v. Hildreth, 9 Ired., 440.'
54. Upon a quarrel, one of the parties retreated about flfty
yards, apparently with a desire of avoiding a conflict; the other
party pursued Avitli his arm uplifted, and Avhen he reached his
opponent, stabbed and killed him, the latter luiAnng stopped and
first struck Avith his flst. It was held that this was a clear
case of murder. State v. Hoiuell, D Ired 485.
692 HOMICIDE.
55. Whenever there is a reasonable ground to beheve that there
is a design to destroy life, to rob, &c,, a killing to arrest such
design is justifiable; but it is for the jury, and not for the pris-
oner, to judge of the reaso-nableness of such apprehension. State
V. Harris, 1 Jones 190.
56. Whore the wound is adequate and calculated to produce
death, it is no excuse to show that had proper caution and atten-
tion been given, a recovery might have ensued, Neglect or mal-
treatment will not excuse,, except in cases where doubt exists as
to the character of the wound. State v. Bal-er, 1 Jones 267.
57. If, after words of anger, the slayer took up an axe and ap-
proached the deceased with intent to kill him, or do him some
great bodily harm, and the deceased had sufficient reasons for
believing that such was his intention,, he had a right to strike in
i-'eli-defence, although the assailant was not sufficiently near to
strike him, and such striking by the deceased would not amount
to a legal provocation, to mitigate the killing to manslaughter.
Ibid.
58. Where one strikes another a violent blow, vnxh a heavy
pole pointed with iron, and a fight ensues in which the person
assailed uses a deadly weapon, with which be knocks down his
adversary and disables him, and follows up his blows with
great violence and cruelty until he kills him ; this, on account
of the greatness of the provocation offered by the deceased in
the first instance, is but manslaughter. State v. Curry, i Jones,
280.
59. The doctnne of killing upon provocation discussed, and
the distinctions pointed out lietween the circumstances when
such killing will be murder, and when it will be only man-
slaughter. Ibid.
60. A mere grudge, or malice in its general sense, is not suffi-
cient to bring a case within .the rule which refers the killing to
antecedent malice, rather than to an immediate provocation. In
order to have that effect, there must be a particular and, indefi-
nite intent to lAll, as if the weapon with which the party intends to
kill be shown, and the time and place are fixed on, and the party
goes to the place at .the time, for the purpose of meeting his ad-
versary, with the intent to kill him ; for in such case there is in
law a presumption of malice until it is rebutted by the accused.
But where tlie slayer bears malice against his adversary and they
meet by accident and a (quarrel ensues, during which the adver-
sary strikes the slayer with a grubbing hoe, whereupon he is shot
and killed with a pistol, the rule of refering the homicide to
the motive of a previous malice will not apply. State v. Jolm-
8on, 2 Jones, 247.
61. Where a killing, which would have been manslaughter by
reason of having been done on legal provocation, is nevertheless
insisted to be murder because of the unusual manner hi which
HOMICIDE. 693
tlie homicide -was committed, if there be several aspects, in
■which the alleged unusual manner may be viewed as qualifying
the motive of the prisoner, some of which are favorable and
others not^ it is error in the court to submit to the jury only the
unfavorable views. State v. Gentrij, 2 Jones, 406.
62. Where the nnusual circumstance relied on,, as aggravating
the case from manslaughter to nnn-der, was that the prisoner
put his knife rypen in Ids pocket, and the court charged the jury
that if the prisoner put his knife open in his pocltet, and ad-
vanced to meet the prisoner witli a view to a rencounter, and
with the intent to use the knife, not in self-defence but with the
design to take the life of the deceased, and he did so use his
knife in killing deceased, it was murder ; it vms held that the
judge ought also to have charged them, that if the prisoner put
ins knife open in his pocket Avithout thinking of it, or with the
view to use it only in the event of its being necessary to do so
in selt^defence, then the killing was only manslaughter. Ibid.
63. If a husband slay a man in the very act of adultery with
his wife, it is only manslaughter; but if he slay him because the
deceased had before that time committed adultery with his wife,
or because he believed the deceased was going off Avitli her to
c mrait the act, it is murder. State v. Samml, 3 Jones, 74.
(j4. In a trial for murder, where the homicide is clearly estal >-
lished or admitted, everj^ matter of excuse, mitigation or justifi-
cation, must be shown by the prisoner, and he has no right to an
instruction from the court, that, unless the jury are satisfied be-
yond a reasonable doubt that the case is murder, they must hud
it to be manslaughter. State v. Johnson^ 3 Jones, 266.
65. If a man deliberately kill another to prevent a mere tres-
pass on his property, whether it could have been otherwise pre-
vented or not, he is guilty of murder. « Stace v. McDonald. 4
Jones, 19.
66. Though a person may engage in a fight Avillip g]y, yet, if
in its progress, he be "sorely pressed," that is, put to the Avail,
so that he must be killed or suffer great bodily harm, unless he
kill his adA^ersaiy, and under such circumstances he does kill,
it is excusable homicide. State y. IngoJd, 4 Jones, 216.
67. Where the prisoner and deceased Avere friendly, and being
together at a certain place, the prisoner mounted his horse for
the purpose of going home, A\dien the deceased seized the reins
and held them forcibly for from ten to forty-fiA^e minutes, in spite
of the efforts of the prisoner to get loose, whereupon the prisoner
dismouTited and stnick the deceased AAuth a jug full of molasses,
(Avhich he had casually in hands.) seA'cral bloAvs, Avhich proA^ed
fatal, it luas held that the killing Avas a case of manslaughter and
not murder. State v. Eamseij, 5 Jones, 195.
68. A person, A\dio has inflicted a mortal bloAv, cannot be con-
victed of a homicide, if the Avounded man were in fact subse-
694 HOMICIDE.
quently killed by another, having no understanding or connec-
tion with the first. State v. Scutes, 5 Jones, 420.
69. Where it appeared that two persons had formed the design
to wrongfully assail a third, and one of tlieni, in furtherance of
such design, with a deadly weapon aiid without provocation, did
assail and kill him, it was held that both were guilty of murder.
State V. Simmons, 6 Jones, 21.
70. Where it appeared that the prisoner had prepared a deadly
weapon witii an intention to use it, in case he got into a fight
with the deceased, and went to a particular place for the purpose
of meeting Avith him, and of having a conflict with him, it was
held to be murder, and not manslaughter. State v. Hogve, 6
Jones, 381.
71. If two men engage in a fight mutually and suddenly, and
one kills with a deadly weapon, it is but manslaugditer, and,
ordinarily, it is not material which makes the first assault. State
v. Floyd, 6 Jones, S92.
72. The fact that the prisoner was informed, or believed that
tlie deceased committed a rape upon his wife, or committed
adultery witli her, will not extenuate a homicide from murder t<")
manslaughter. He must find the deceased in the verj- act. and
kill him immediately, to have that effect. State v. Neville, G
Jones, 423.
73. On an ijidictment for murder, the question whether the
instrument, or weapon used, was a deadly one, is for the court.
The instrument may be deadly or not, according to the mode of
using it, or the subject on which it is used. And the effects pro-
tluced by the instrument! may aid in determining its chai^acter,
and in shoAving that the person who used it ought to have been
aware of the danger ot thus using it. Hence, it was held that
an oaken staff near three feet long, of the diameter of nearly two
inches, with wliich three blows were stricken upon the head of
a, man while drunk and helpless, shattering the bones of the
head and rupturing the interior vessels of the brain, was a deadly
weapon, and the killing by the use of it was murder. State v.
I't'e.d, 6 Jones, 505.
74. A blow need not endanger the life of the prisoner in order
to make it amount to a legal provocation. State v. Sizemore, 7
Jones, 206.
75. The time, intervening between the receiving of a legal
provocation and the striking of the mortal blow, is a question of
law, and it is error to submit it to the jvny. Ihid.
76. If a person deliberately kill another, to prevent a mere
trespass upon property, he is guilty of murder. State v. Brcmdon,
8 Jones, 4()3.
77. ^^''here a defendant in a State's warrant, which charged a
misdemeanor, put himself in armed ^^sistanoe to the officer hav-
ing the waiTant, and the officer, in the attempt to take the de-
HO^riCIDE.— HOTCHPOT. G95
fendant, slew liim, ■without resorting to unnecessary violence, it
icas held that he M-as justified. State v. Garrett, 1 AVinst, 144.
78. Tlie principle of self-defence does not apply to the case of
one, ^vho puts himself in the posture of armed defiance to the
process of the State. Ibid.
79. One who is not a regular officer, but to whom a State's
warrant is specially directed, is bound to shoAv it, and to read it
if required; but where the defendant in such warrant had notice
of the process, was fully aware of its contents, and had made up
his mincl before hand to resist its execution, it icas held that the
ofticer did not become a ti-espasser ab initio hx refusing to pro-
duce his \varrant on demand, so as to justify the defendant in
resisting its execution. I hid.
'SO. 1 f two men fight, on a sudden quarrel, with deadly weapons,
and one strike the other a mortal bloAv before the person so strick-
en_ is prepared to use his weapon, the killing is murder; and so
it is if any unfair advantage be taken, and if one use a knife and
the other a stick or a pistol, they do not fight /a«7?/ and on equal
terms, and, therefore, the parly killing is guilty of "murder. State
V. ElUck. 2 Winst., bix ' *
81. If an indictment for murder charge that A killed the deceased,
and that others were present aidhigand abetting, and it is proved
that the deceased was killed by some one with whom A was act-
ing in concert, and that A was present aiding and assisting, the
ju-oof sustains the charge, and the jury should be instructed to
find A guilty of murder. State v. CochnaM, 2 Winst., 95.
f>2. If several armed men go to a dwelling house in the night
time^ for the puiix.)se of seizing the owner, without lawful "au-
thority, and one of them be killed by the owner to prevent the
;^xecution of their purpose, such killing is not murder. State v.
Jledlin, 2 Winst., 99.
See (Assault and Battery, 5-12.) (Indictment and matters
relating thereto, 1-8-13-14-15-27-32-43-53-54-6(3-89-110-1 11-
1 19-1 2()-138-139-157-163. ) (Indictment— =0f the trial, verdict
and judgment, 7-18-22-2()-29-30-31-50-51-54-74-80-81-84-
103-107.) (Indictment — Variance between the allegations and
proof, 6-12.) (Evidence — In criminal proceedings and indict-
ments, 9-22-32-52-53-69-71-72-73-76-77-78-80-81-83-84-85-
87-88-90-95-97-98-101-104-109-110-111-116-117-122-124.)
HOTCHPOT.
1. Where a devisor purchased land after making his will, and
gave a jwrtion of them to one of his children in his life time, and
died without having disposed of the residue, if wa.s held that the
knd advanced to that child must be brought into hotchpot,
696
HOTCHPOT.— HUSBAND AND WIFE.— I.
in the division of the undisposed of land among the devisor's
children, and the land advanced must be valued at its worth at
the time of the gift, and the land to be divided according to its
value at the ancestor's death. Toonier v. Toovier, 2 Hay., 368.
(563,) and 375, (573,) S. C. 1 Murph., 93.
2. Where an intestate had, in his life time, conveyed one tract
of land to one of his daughters and her heirs, one to her husband
and his heirs, and another to the daughter and her husband and
their heirs, one of tlie deeds purporting to be for natural love
and affection, one for a small pecuniary consideration, and one
for natural love and five shillings, it was held that the land con-
veyed to the husband alone was not to be brought into hotchpot;
])ut that the land conveyed to the wife alone, and one-half of
that conveyed to the husband and wife were to be so brought.
Jones V. Spaight^ 2 JMurph., 89.
3. Lands advanced to a child in the life time of the parent are
not to be brought into account, in the settlement and distribu-
tion of the personal property of the parent, after his death. Jones
V. Jones, 2 i\lurph., 15d S. P. Wilson v. Hiqlnower, 3 Hawks,
76. (Altered, see licv. Code, cli. 38, sec. 1, Rule 2 and ch. 64,
sec. 2.)
4. Where a testator died, leaving one tract of land undisposed
of, and leaving a daughter to whom he had given no huid but a
full share of his personal estate, the other sons and daughters, if
they claim a share of the land so undisposed of, must bring into
hotchpot all the land settled upon them by the testator, either by
deed or devise. Norwood v. Branch, .2 Car. L. IL, 598, (400.)
See (Distribution, 2-10-20-21.)
HUSBAND AND WIFE.
I. Of marringe.
II. Husband's interest in his wife's
person.
III. Husband's interest in his wife's es-
tate during coverture, and af-
ter death, as survivor.
IV. Conveyance of real estate telius-
band and wife.
V. Conveyance by hus&and and wife.
VI. -Of marriage settlements and agree-
ments.
VII. Of actions by, and against, husband
and wife.
VIII. How far the husband is bound by
the acts and admissions of his
wife, before and after marriage.
IX. Of the liability of a wife for her
own acts during coverture.
I. OF MARRIAGE.
1. Oral evidence of cohabitation is admissible as evidence of
jnarriage. Wiitehead v. Clmcli, 2 Hay., 3, (146.)
2. General reputation and cohabitation are evidence of mar-
HUSBAND AXD WIFE.— I. 697
riao-e in all cases, except in actions of crim. con. Weaver v. Cry-
e?-,'l Dev., 337.
3. Where a husband sues for an injury to his marital rights,
he nnist prove the solemnization of the marriage; but in those
cases in which ne unqnes accoupJe is not a proper plea, the marriage
mav l>e inferred from circumstances. Brhwjar v. Chaffin, 3
Dev., 108.
4. The marriage of shives in this state consists only of cohab-
itation by the consent of the ownei's, and does not constitute the
relation of husband and wife, so as to attach to them the privi-
leges and disabilities incident to that relation by the common
law. State Y. Samuel, 2 Dev, and Bat., 177.
5. ]Marriage is in law complete, when parties able to contract
and Avilling to contract have actually contracted to be man and
wife, in the forms and with the solemnities rec[uired by law. Con-
summation by carnal knowledge is not necessary to its validity.
S'ate V. Patterson, 2 Ired., 34<).
G. Where a marriage is solemnized in another state, in the
manner prescribed by the laws of this state, the court must in-
tend such a marriage to be good, unless the contrary be shown.
Ibiu'.^
7. The act, prohibiting marriages between white persons and
persons of color, includes in the latter class all who are descend-
ed h'om negro ancestors to the fourth generation inclusive, though
one ancestor of each generation may have been a white person.
State V. Waiters, 3 Ired., 455. (The Rev. Code, ch. G8, sec. 7,
says " free negro or free person of color to the tliird generation.")
8. Where a marriage is celebrated between persons, one of
Avhom lias no capacity to contract marriage at all, as where there
is want of age or understanding, or a prior marriage still sub-
sisting, the marriage is void absolutely and from the beginnhig;
and, as between the parties themselves and those claiming un-
der them, no rights whatever are acquired by such marriage.
And whether a marriage was void or not, may be enquired into
Ijy any court, in which rights are asserted under it, although the
j)arties to the marriage be dead. Gathings v. Williams, 5 Ired., 487.
9. Where husband and wife are domiciled in this state, and
the husband obtains a divorce from the bonds of matrimony on
account of her adultery, and she then goes into another state
while her late lms1)and is living, and there marries another man
in evasion of the laws of this state, which prohibit Jier from mar-
rying again, such marriage is null and void to all purposes.
Williams v. Oates, 5 Ired., 535.
10. It is not necessary to the validity of a marriage that the
parties shoidd have obtained a license from the clerk of the coun-
ty court. The omission of the license only subjects the minister,
or justice, performing the ceremony to a penalty. State v. Rob-
bins^ 6 Ired., 23.
698 HUSBAND AXD WIFE.— I.
11. It is sufficient proof of a marriage that the ceremony was
]M;n-formed by one, who was in the known enjoyment of the oifice
of a justice of the peace, and notoriously acting as such. It is
not necessary to produce his commission from the governor.
1 hid.
12. The words '^the cure of souls" used in the mairiage act,.
Iiev. Stat., ch. 71, do not imply a necessity that the minister
sh(ndd be tlie incumbent of a chui'ch livingv or the pastor of any
• umgregation or congregations in particular; but they do imply
that the person is to be something more than a minister merely,
and that he has the faculty, according to the constitution of his
church, to celebrate the rights of matrimony, and to some ex-
tent, at least, has the power to administer the christian sacra-
ments. And when a marriage is claimed to have been made by
a minister, the exteiit of his authority for that purpose should
a]ipcar. Staie v. Bray, 13 Ired., 281). (See Rev. Code, ch. 68,
sec. 1, Avhere the words having " the cure of souls " is omitted.)
IT). The act of 1838, ch. 24, declaring void all marriages be-
tween white persons and free negroes and persons of color, in-
cludes only cases where such persons of color are within the
third degree. Hence, where in an indictment for fornication
against A and B, who had been married, it appeared that one of
the defeildants was of Indian blood, but of what degree was not
])rovcd, it 2vas lield that the parties could not be convicted. State
V. Melton, Bush., 49. (See Kev. Code, ch. ()8, sec. 7.)
14. If one marry an infaE-t female under fifteen years of age,
without the consent of her fother or guai'dian, the forfeiture, un-
der the act of 1820, does not arise from the oflence simply, but
from that and a conviction therefor in due- time. Ludnncl' v.
Stafford, 6 Jones, 109. (The law is now altered, so that the for-
ieiture accrues immediately upon the commission of the offence.
See liev. Code, ch. ^ot^, sec. 10 and 11.)
15. A male and female slave intermarried Avith the consent of
the owners, in the forn> usual among slaves; afterwards the
male slave was dul^- emancipated and purchased his wife,, and
after that they had one child; the female slave was then eman-
cipated, and without any further marriage ceremony they con-
tinued to live together and had sevei'al other children ; the fe-
male then died and the male married in due form a free woman.,.
l)y whom he also had children; and it uxin held that there was
no legal marriage between the man and liis first wife, and, con-
sequenth', her children were illegitimate, and could not inherit
upon the death of their father, as tenants in common with his
legitimate children by his second wdfe^ Howard v. Howard, (>
Jones, 235.
16. The 12th section of the 68th cliapter of the Revised' Cbdi©
(concerning marriage,) which requires a certifi'cate in case the
parent or guardian of a female lives out of the State^ before a
HUSBAXD AXD WIFE.— I.-II.-III. 099
marriage license .shall be issned, is not confined to females under
tifteen, but applies to all under twenty one years of age. Caroon
V. Rogers, () Jones, 240.
17. The peiialty ot $1,000, given bv the 13th section of the
same act against a clerk who wrongfully issues a license, cannot
he recovered in the name of the father of the infant female, but
must 1)6 sued for in the name of the State. Ihid.
18. Where at the time of a marriage the female was under
the age of fourteen, and the parties continued to live together
as man and wife, after she had attained that age, it mas held that
tliere was nothing in the Ilex. Code, ch. 68, sec. 14, to abrogate
the principle of the common law, and that such living together
as man and wife, after tiie age of consent established i^y the act
referred to, amounted to a confirmation of the marriage. Koonre
V. Wcdlace, 7 Jones, 194.
See (Evidence — Hearsay and cominon reputation, 3-1 0-1(5-
17.) (Indictment — When an indictment will lie, 37-59.) (In-
dictment— Limitation of time within which an indictment will
lie, 3-4-5.)
H. husband's interest rK ms wife's person.
See (x\ction on the case — When case will or will not lie, 18.)
3n. husband's interest in his wife's estate during coverture, and
AFTER HER DEATH, AS SURVIVOR.
1. A note given to a married woman, living separate from her
husband, becomes his at once, without his assent. Sivann v.
Gauge, 1 Hay., 3, (5.)
2. After the death of the wife, if the husband die before taking
administration upon her choses in action, lier administrator, and
not his, is the proper person to sue for and distribute them; but
lie must account to the huBband'« administrator for all he re-
ceives, above what will pay her debts — the husband being enti-
tled as next of kin to the Avife. Whithie v. Frazier, 1 Ha'v., 275,
3. Slaves, in whom the wife has a remainder, vest in the hus-
band, though he dies during the coverture, without having re-
duced them into possession. Leu-is v. Bi/nes, 1 Hay., 278, (320.)
See contra, Hynes v. Leivis. Tav., 44, (33.) Neat v. Haddock, 2
Hay., 183, (383.) 3foye v. -, Ihid, 188, (387.) Neal v. Bad-
docJc, Conf Rep,, 75, (207.) McGallop v. Blount, Ibid, 96, (227.)
Idcr> qucere! and see Knight v. Leal-e, 2 Dev. and Bat., 133.
4. Where a tenant for life l)equeathed one-half of the emble-
ments, to which she was entitled, to her daughter, and left an
executor, who, after reaping and housing the crop, married the
daughter, but died before he had sold or otherwise disposed of
700 HUSBAND AND WIFE.— III.
it, l.e'd that his possession of the crop was on\j as executor, and
that, upon his death, his wife, and not his administrator, was
entitled to it. Berry McAli.ster, Conf Eep., lUO, (231.)
5. Upon the marriage of a feme sole, a life estate in a chattel,
reserved by a deed of gift made by lier, when sole, to her son,
l^ecomes vested in her husband. Black v. Beathi, 2 Murph., 240.
S. C, 1 Car. L. E., 96, (12.)
(I If a feme sole, just before her nmrriage, convey slaves to
her mother, without the knowledge or consent of her intended
husl)and, he cannot, after marriage, recover them back in right
of his wife, at least in a court of law. Johnson v. HamhleL 2 Car.
L. R., 1)(7, (103.)
7. A warranty of title, annexed to a slave sold to the wife be-
fore coverture, if the slave be recovered from the husband after
the death of the wife, does not survive to the husband; because,
though relating to property which did vest in the husband, its
essential quality as a chose in action remained unaltered; aiid
+he husband could not recover upon it, except as the administra-
tor of the wife. Casey v. Fonville, 2 Car. L. R., 404, (2S7.)
8. A slave hired out for a year is not a chose in action, and if
a feme owner of such slave marry during the year and her hus-
band die before the end of it, the slave will not survive to her,
Ijut Avill vest in his personal representative. WhitaJ;er v. WMta-
/.Y:/-, 1 Dev., 310. S. P., Granberry v. Mhoon, Ibid, 45G. Petti-
jolm V. Beasley, 4 Dev., 512.
9. The husband, by his marital rights, is entitled to the per-
sonal estate of his deceased wife, whoever may administer. Hos-
idns V. 3mer, 2 Dev. 3(50.
10. The husband acquires, by marriage, no estate in the land
of his wife, of which she is not\ictually "seized. And where the
vv^ife has a vested remainder in lands, a sale, in the lifetime of the
particular tenant, of the husband's interest passes nothing to the
purchaser. Gentry v. Wagsfcffe, 3 Dev ,270.
11. It seems that, at law, the husband's assignment will pass
every expectant chattel interest of the wife, as if it were an in-
terest ot his own, unless so limited that it cannot, by possi))ility,
vest in possession during the coverture. But, at all events, an
assignment of the husband, if not binding on the wife surviving,
while the interest continues expectant, is certainly valid as a
conveyance, when the interest fells into possession during the
coverture. Burnett v. Boberts, 4 Dev., 81.
12. Slaves lent to a woman before marriage will l^o held by her
husband as bailee, and the statute of limitations will not operate
in favor of his possession, until the contract of bailment is at an
end. Logan v. Simmons, 1 Dev. and Bat., 13.
13. A conveyance by a woman before marriage is not, at law,
under any circumstances, a fraud upon the marital rights of the
husband. Ibid.
HUSBAND AND WIFE.— III. 701
14. The husband is not, by niariiage, the purchaser of his
-H'ife's chattels. JMamag-e is the only contract between the par-
ties ; the latv gives to the hnsband his wife's goods as an inci-
dent. And Avhat the wife has disposed of before marriage is
not hers, and, therefore, is not tiTinsferred to the husband. But
on ante-nuptial voluntary bond, or conveyance of the wife, may,
in some cases, be relieved against in equity. Ibid.
15. If an administrator marry the next of kin of his intestate,
and has assets, and, upon the deatli of his wife, administers upon
lier estate, her distributive shaie becomes his property, the claim
being, by mere operation of law, satisfied and extinguished; and,
in such case, it seems, the wife's share would become the property
of the husband, without an administration on her estate. Dozier
v. jSanrhrlin, 1 Dev. and Bat., 24(3.
16. \Yliere an intestate is indebted to the wife of his adminis-
trator, and the latter has assets, the debt is satisfied by the mere
<:>peration of law, and does not survive to the wife. AVhether the
debt of the intestat<? be due to the husband or the wife, and
whether the one or the other be the representative, the doctrine
of retainer applies, and the debt is extinguished. Unci.
17. A husband has, jixre mariH, such a dominion over the
vested legal interest of his wife in a chattel, real or personal, of
which a particular estate is outstanding, that he can sell sucii
interest, so as to transfer it completely to the purchaser; or the
law can transfer it for his debts. But the rule is difierent as to
the assignment by the husband of his Avife's equitable interest in
a chattel, in which she has not the right of immediate enjoyment ;
for such assignment will n.ot prejudice her right, should" he die
before her, and l)efore the jDeriod allotted for such enjoyment to
take effect. Knujld v. Lecihe, 2 Dev. and Bat., 133.
18. A legacy given to a wife during coverture, but not paid
to the husband during his lifetime, survives to her; especially
where he joined her in a suit to recover it, and died before final
judgment. Revel v. Revel, 2 Dev. and Bat., 272.
ly. In lands conveyed to husband and wife, they have not a
joint estate, but hold by entireties, and upon the death of either
of them, the whole estate continues in the survivor, notwith-
standing the act of 1784, for abolishing the right of survivor-
ship. Motley V. WJiitemorc, 2 Dev. and Bat., 537. (See Rev.
Code, ch. 4:6, sec. 2.)
20. A distributive share, accruing to a wife during coverture,
does not vest in the husband, but will survive to the wife, unless
reduced into possession by the husband. Mardrce v. Mcuxlree, 1)
Ired 295.
21. Where the wife is tlie sole next of kin, and the husband
the administrator, and the debts of the intestate are paid or as-
sumed by him. and there are no i-easons why he should holdanv
/
702 HUSBAND xVND WIFE.— III.
lono-er as administrator, tlie presumption is very strong that he
hold as husband, and consequently for himself. Ibid.
22. Where there are other next of kin besides the wife, the
husband being administrator, he must, in order to entitle him-
self to the property in his own right, ,appear to be dealing with
it as his own, and not as administrator. Thus, where there were
other funds for the payment of debts, and the husband and tht;
other next of kin agreed to work the slaves on the intestate's
lands, and at the end of the year to divide the proceeds of lire
crop "according to their right as distributess, " it luas held that
this was a sufficient reduciion into possession by the husband,
to prevent any right of survivorship in the wife. Ibid.
2H. Property conveyed to a married w^oman, after a decree ob-
tained in her favor under the act Rev. Stat., oh. 39, sec. 12, is
not ]>rotected against the claims of the husband's creditors, if
the husband has paid, either from bis own means or the earnings
of his infant children, who live with him, the whole or any con-
siderable portion of the purchase njoney. Worth v. York, IH
ired., 206. (See Rev, Code, ch. oi), sec. U.)
24. Where personRi property belonging to a feme is held ad-
versely for more than three years against her, while she is an in-
fant, and during her coverture, which commenced before she be-
cauie of age, she, upon the death, of her husband, is entitled to
recover it, as her infancy and coverture prevented the statute o\'
limitations from barring her right, and the adverse possession
of the property prevented it from vesting in her husliand.
Airey v. Holmes., 5 Jones, 142.
25. If a man marry a woman, who was divorced from her first
husband on account of her adultery, the iuarriage, during flit;
life of the first husband,, is absolutely void, and the second hus-
band cannot actpiire any interest in her property, given to her
during the existence of su€h unlawful marriage. Culloivut/ v.
Bryan. 6 Jones, 5H1K
'26. A bequest of slaves to «, man and his wife "during their
natural lives," and "then to the lawful heirs of the wife," gives
the absolute estate to the wife by the rule in Shelly 's case, and it
immediately vests in the husband, Jitre mar Hi. Hodges v. Little,
7 Jones, 145.
27. The act of 184.S, Rev. Code, ch. 50, see. 1, does not deprive
the husband of his estate by the cui'tesy, in the lands of his wife.
Houston V. Broicn, 7 Jones, IGl.
28. Where, by a deed to a feme covert,, an estate was conveyed
to her for her own life, it luas held that her husband had no in-
terest in it, except the right to receive the rents and profits du-
ring the coverture. Gray v. Mathis, 7 Jones, 502.
See (Executors and Administrators — Of their liability to leg-
atees and next of kin, 7.)
HUSBAND AXD WIFE.— IV.-- V. 703
IV, CONVEYANCE OF REAI, ESTATE TO IIUSB.AND AND ^VIFE.
1. Where a conveyance of land is made to husband and wife,
they do not take interests as joint tenants or tenants in common,
but they take estates in fee by entireties, and not by moieties;
and the husbaiul cannot, by his own conveyance, divest the wife's
estate, but, on her surviving him, she is entitled to the whole
estate. Needhcan v. Branson, 5 Ired., 42(1
2. A conveyance of land, to a husband and his wife and tlieir
heirs, vests the entirety in each of them, and, upon the death of
eitlier, the survivor takes the Avhole in severalty. Woodford v.
Hkjly, 1 Winst., 237.
See (Husband and Wife — Husband's interest in his wife's es-
tate, cV:c., ID.)
v. CONKEYANCES BY IlCSBAND AND -WIFE.
1. It must appear that a deed from husbtind and wife was ac-
knowledg-ed bv the husband, as well as the wife. JVItitehurst v.
Binifer, 2 Haf., 401, (004.)
2. The privy examination of a, feme covert, as to the execution
of a deed, cannot be proved by parol Harrell v. Elliott, Tay.,
189, (^6.) S C, 2 Hay., 68, (236.)
3. On a deed from husband and wife, there w-as a certificate
endorsed, '• that the wife appeared in open court and acknowl-
edged the deed before the court, was privately examined, and
said it was executed freely and Avithout compulsion," and on the
minutes of the court there was an entry that the deed "W'as ac-
knowledged;" and it was registered. Held that it must be pre-
sumed to have been acknowledged by the husband, though not
so expressly stated. Hunter v. Bryan, 2 Murph., 178.
4. The deed of a feme covert, without a private examination as
directed by act of as.^embly, is a mere nullity and void; and, to
give validity to her deed, it must appear that her private exam=
illation has been had pursuant to the act; if it appear by the
clerk's certificate merely that " the deed was acknowledged in
open court, and ordered to lie registered," a private examination
will not be presumed from such certificate. Bobinson v. Barfitld^
2 Murph., 390. (See liev. Code, ch. 37, sec. 8, and following.)
5. By th(^act of 1715, as explained and amended by the act of
1751, a deed to convey the lands of a feme covert must, except
in case of her inability to attend, be acknowledged by the hus-
band and wife in open court, and proof of the execution by wit-
ness is not sufficient. Under these acts, the proper mode to bar
the wife, wdren she is able to attend, is for the husband andAvif«
to acknowledge the deed personally in open court, and then lor
one of the court to take the private examination of the wife.
Buryeis v. Wilson, 2 Dev., 306.
704 HUSBAND AND WIFE.— V.
G. When the wife cannot attend, the deed must be first proved
as to the husband, and then a commission issued to two or more
commissioners to take the acknowledgment and privy examina-
tion of the wife. Ibid.
7. Wiiere a justice of the court was ordered to take the private
examination of the wife, before the deed was proved as to either
the husband or the wife, who, upon making his report, proved
the execution of the deed by the husband and wife, and also
certified as to her private examination, held that the deed was
inoperative and did not bar the heirs of the wife. Ihid.
<S. The deed of a/cw?e. covert does not bind her, when her pri-
vate examination was taken under a commission by one commis-
sioner alone, and when slie was neither a resident of another
county, aged nor infirm. Barfield v. Combs., 4 Dev., 514.
9. Where it did not appear, either in the order for a commis-
sion to take the private examination of a feme covert, or in the
commission itself, that she was an inhabitant of another county,
(jr so aged or infirm as to be unable to travel to court, it ivas heJ^ J
that the deed was inoperative to- convey the wife's interest in the
land. Feimer v. Jasper, 1 Dev. and Bat., 34.
10. It seems that it must appear that tlie commission and the
certificate of the commissioners were retTirned to the court, ap-
proved and ordered to be registered, or the deed Avili be invalid!
as to the wife's estate in the land. Ihid.
11. A certificate of commissioners appointed by another state
to take the private examination of a /one covert^ touching the
free and voluntary execution of her deed, which states merely
that she " acknowledged the same to be her act and deed in due
form," is not a compliance Avith the act of 1810, which reipiires
a certificate of her acknowledgment, that she executed the deed
freely, and " doth voluntarily assent thereto." Lucas v. Cohbs,
1 Dev. and Bat., 228. (See Rev. Code, ch. 37, sec. 5.)
12. An order that the deed of a feme covert residing in an-
other state, with the accompanying com mission, and certificates,
be registered, is not conclusive that all the requirements of the
statute have been complied with; and the omission of all or any
of them may be shown, when the deed is offered in evidence
upon any trial. Ibid.
13. The deed of a feme covert is void at common laM'-. and can
only be eflectual Avhen execDted according tc our acts of assem-
blymen that subject. By these acts the deed is to be first ac-
knowledged or proved, 'both as to husband and wife, and, then,
if she is a resident of another county, or unable to attend Irom
age or infirmity, a commission may be issued to take her pri-
vate examination, either by a judge or the county court; and
when her examination preceded the probate,, the deed was held
to be inoperative. Sutton v. Sutton, 1 Dev. and Bat., 582.
14. Either a judge out of court, or the county court in sesS'ion
HUSBAND AND WIFE.— V. 705-
may, upon being satisfied of the wife's inability to attend for a
privv examination, order a commission to issue for taking it.
Ibid.
15. Where neither the certificate of the commissioners, ap-
pointed to take the private examination of a feme covert., upon a
deed made by her and her husband, nor any record produced,
show that she was prvately examined, the deed is void as to her.
Ives V. Saivyei\ 4 Dev. and Bat., 51.
16. Where'a commission issued, by order of a county court, to
take the private examination of a /bvie covert as to her execution
of a deed, the recital in the commission that " it has been repre-
sented to our said court that INI. W. (the feme covert.,) is indis-
posed, so that she cannot travel to our said court," &c., is as ef-
fectual as if the same recital had been made in the order of the
court directing the commission to issue. And the words " in-
disposed, so that she cannot travel," &c., taken in reference to
the subject matter, must mean " unable to travel from siskness."
Skinner v. Fletcher, i Ired.,_ 313.
17. Where the commissioners certified that they took '-the
private examination " of the feme covert, and that she acknowl-
edged that " she executed the deed without any compulsion from
her husband or any other person," this is suffteient, without say-
ing that she was examined "privily and apart from her husband."
On the subject of the examination of femes covert, as to the exe-
cution of deeds, the phrases "privy examination," "private
examination," and "examination separate and apart from her
Inisband," are indifferently used in our acts of assembly. Ibid.
18^ A deed of husband and wife, dated 1st i\larch, 1834, was
oftered in evidence, and to prove the due execution of the deed
by the wife, a commission issued by the coui't to two justices to
take the private examination of the wife, dated 17th February,
1834, reciting that a deed had theretofore been executed by the
husband and wife, and authorizing the justices to take the private
examination, together with tlie return of the justices endorsed
on the deed of 1st March, 1834, was offered in evidence, it teas
held that the deed of the 1st March, 1834, was not the deed in-
tended to be submitted to the commissioners, and that their
certificate endorsed on that deed was m.ade Avithout authority,
and was therefore void, and that, of course, the deed did not pass
the title of the wife. Rich v. Beeding, 2 Ired., 240.
19. Where a deed from husband and wife, for the real estate of
the wife, had on it only the following certificate from the clerk
of the county court, as to its execution, to wit: "the private
examination (jf H. J., wii'e of J. C. J., taken, by C. A. H., a mem-
ber of the court, Avhich, being satisfactory, is ordered to be
recorded," and signed "C. A. H., J. P.," and a proof of the exe-
cution of the deed by the subscribing witness and an order of.
3*
70G HUSBAND AND WIFE— A".
registration, it iims field tliat the wife's iutei-est in the land did
not pass. Jones v. Lewis, 8 Ired., iO.
20. Where a deed was acknowledg-ed in the connty coiu-t by
husband and wife, and two justices took the private examination
of the wife., and reported the san^e to the court, and the court
acted upon the report, it teas held that the inference was irresis-
tible, that tlie two justices were members of tJie court appointed
for tluit purpose, though no special order of appointment ap-
peared. Etiieridge v. Ferehee, 9 Ired., ?>12.
21. It is sufiicient, if the certificate of the private examination
of the wife state that, upon such examination, she declared that
she had voluntarily executed the deed, without saying- tliat '' she
doth now voluntarily assent thereto." Ibid.
22. If, upon her privy examination, the wife state that, though
she was willing to convey when she executed the deed, yet she
had changed her mind and was then unwilling, her assent can-
not 1)0 certified. Hid.
2;i It is immaterial whether the acknowledgm'ent or the pri-
vate examination be first recorded. Ibid.
24. Where a deed from husband and wife had on it the follow-
ing entries: "State of N. C, Currituck county, Feb. Term, lXo2,
personally appeared, L. C, wife of J. C, and in open court
acknowledged that she assigned the within deed of her own free
Avili, without any constraint whatever. Let it be registei-ed.
(Signed) W. D. B." '-This deed from J. C. and L. to S. R, Avas
exhibited and proved in open court by J. L. S., the subscribing
witness. At the same time, L. C, the feme covert, persoiudly
appeared in open court, and being privately examined by W. D.
I)., one of the court appointed for that purpose, who reported
that the said L. C. acknowledged the execntion of the said deed
of her own accord, and witliout any constraint whatever. &q:
On motion, ordered to be registered. (Signed) S. Hall, C. C. C."
And there was also the following entry on the minute docket
of the same term: "A deed from J. C. 1). and wife L., to JV. C
E., was proven as to J. C. and wife, by the oath of J. S., a witness
thereto, and her private examination taken in open court and
ordered to be registered." It icas held that these entries did not
show that the wife had been privily examined, as recpnred by
law. FAheridge v. Js)bee, 9 Ired., 35;-5.
2'). Upon the probate of a deed for land by husband and wife,
the Avife residing in another state, a connnission to take the pri-
vate examin.'ition of the wife may issue from tlie coiu't of the
county where the land lies, under the act of ]7r)b_ In the lie-
vised Statutes, by a misprint, the Avord "conntry, " in the act of
1751, is chang-ed to the Avord "county, " but from the context,
the construction of the lievised Statute must be the same as that
(,t the act of 1751. Fiercer. Wanett, 10 Ired., 44G. (See liev.
HUSBAND AXD WiFE— V. 707
Code, cli. 37, sec. 9, where the words "country or county" are
inserted.)
•2\). In order to be allowed to introduce in evidence the deed
of a married woman, the followin.^ facts were proved: "That
upon the record of X. H. county court, at August term, 1818,
there was an entry in these words: Ordei'ed tliat J. M, C. and D.
J. be a})pointed to take the private examination of S. P., wife of
P. P., t(_)uclung- her free execution of a deed executed bv them
to Samuel Potter, dated July :^lst, 1818. On tlie 10th of August
the clerk issued a commission to the said J. M. C. and D. J., as
residents of X. H., to take privy examination of the/eme, recit-
ing- that the deed had been proved in tlie county court, and that
it'liad been represented to the court, that the said 8. P. could
r.i>t travel, Szc, and upon it the commissioners on the same day
returned the private examination," and then follows an entry on
tlie commission, that the execution of the deed was proved by
-.' M. C, Avho, and 1). J., are the subscribing witnesses; upon
•>.i''h it was registered. It loas held that this Avas not sufH-
»;,'nt proof of the execution of the deed by the wife. Ibid.
■Si. A certificate of probate on the deed of a feme covert set
itb, that the deed "was exhibited in open court and the exe
ei ttion thereof by (the husband) was proved by T. S., (a subscribing
witness,) and acknowledged by (the /ewe covert) wlmn on motion
in open court (L. S., Esq.,) one of the presiding justices was
aT:)pointed to take the private examination of (the said feme
r r.-erl) as to her consent in signing the said deed, who reported
':0 acknowledged to have signed it of her own free will and
•>'()rd, witliout any compulsion from her said husband. Ordered
'■ I be recorded;" and it icas. held. that the probate was sufficient
' make the deed valid against the wife. Beckwith v. Lamb, 18
::ed., 400.
'2!<. A copy of the proljate of a deed, by tlie subscribing wit-
ss, also of the order made by tlie county court to appoint
: .iiimissioners to take the private examination of a /"erne covert,
\'.';is inserted on the deed itself, as also was the report of tlie
'•^iinmissioners, which were duly registered, thougii no other
iiimissiou issued to them and no other report was made to the
I'.vt; and it was Jicld that tliis was a substantial compliance
;th thy act of assembly, and that the deed was duly authen-
ij'uted. HatJianrq/ v. I)are/rport„ 2 Jones, l')2.
•2';). A deed made by a husband and wife for the wife's land, to
' !!e who died previously to the probate and privy examination
( i' the wife, is good, and relates back to the time of its execu-
tion, provided that, after the bargainee's death, it was duly ac-
Icnowledged, the i)rivy examination of the wife taken, and' the
deed registered. Ji<dl v. Bvnlrr, 2 Jones, 440.
oO. Where a husband professed to convey, in fee simple, land
v>-hich belonged to his wife, by a deed in which he only was
708 HUSBAND AND WIFE.— Y.
mentioned as the grantor, and after the delivery of the deec"
his wife signed, and sealed it, it was held that she was not thereby
made a party to the deed, and, consequently, that her interest
in the land was not thereby conveyed. Kerns v. Peeler, 4
Jones, 226.
ol. Where a certificate, on the back of a deed by a husband
and wife for the wife's land, purported to be an acknowledgment
in the county court, and an examination ot the wife before some
member of that court, but was subscribed by the name of a
judge of the superior court,, i^ urns held that the certificate was
inefieetive. Barbee v Taylor, 6 Jones, 40. _
32. Where there was an order to take the private examination
of a feme covert, and there was also a probate of the deed as to
the husband by a subscribing witness, and a commission, and its
return, certifying that tlie commissioners had taken the privy
examination, and that the wife had declared that she executed
the deed freely and voluntarily, and an order of registration, all
appearing to have been done on the first day of the court, it teas
held that it must be taken that the proof of the deed, as to the
husband, occurred before the order and commission for examin-
ing- the wife — especially as the commission recited that the deed
had been proved, and that, consequently, the probate and privy
.'T^xamination were sufficient. Pierce v. Wanett, 6 Jones, 1()2.
33. Where a feme covert, having a life estate only in land,
made a deed purporting to convey it in her own name, her hus-
band not being: named as a party to the deed, though he affixed
his signature to it along with his Avife, it was held that it was
void as to her, on account of the coverture, and as to him, be-
cause he was not a party to it; and that no privy examination
^•ould give validity to such an instrument. Gray v. MatMs, 7
Jones, 502.
34. Where the intention of the parties to a deed is manifest
m its face, the court, in giving a construction to doubtful pro-
visions, will, if possible, effectuate such intention. Hence, where
a wife, after marriage, supposing the Avhole interest in her land
was in her, made a conveyance to a trustee for her sole and .' ep-
arate use. in which the husband was mentioned as a party, and
executed it as a party, and he also, by various clauses, manifested
a concurrence in her act, but did not profess to convey any es-
tate, it loas held that the sum of ten dollars, recited in the deed
HS having been paid to the wife, was, in legal effect, paid to him
also, and that this sum raised a use from the husband to the trus-
tee, which was executed by the statute of uses,, and thus his in-
terest in the land, as well as that of the wife, was transferred tc)
tlie trustee. Barnes v, Hayharger, 8 Jones, 76.
See (Estoppel— By Deed, 32-36-37.) (Limitations— As to
i:ea) estate, 19.)
HUSBAND AND WIFE.— VI. 709
VI. OF MARRIAGE SETTLEMENTS AND AGREEMENTS.
1. The act of 1785, which reqmresthe registration of marriage
contracts, makes tliem void against creditors only, if it be omit-
ted. Richardson v. Fleming, 2 Car. L. E., 455, (341.) (See Rev.
("ode, oh. 37, sec. 24.)
2. Articles made in contemplation of marriage, whereby the
intended husband " sells and assigns " to a trustee all the, right
in slaves belonging to the intended wife, " which he by opera-
tion of law may thereafter have," do not pass a title in the slaves
to the trustee^ but are merely executory, and bind the hus-
l)and, after marriage, to make the necessary assurances to carry
•them into effect. "Cox v. 3fiirphy, 2 Dev. and Bat., 257.
3. The act of 1829, which enacts that no deed of trust or mort-
gage shall be valid to pass property, as against creditors, but
from the registration thereof, embraces only those deeds in trust
which are intended as securities for debts, and does not include
deeds of settlement between husband and vnie, in which the
property is conveyed to a trustee in trust for the wife ; the deeds
of the latter class'^being provided for, as to their registratioUv in
the 29tli section of the Eevised Statutes. Savnders v. FerriP, I
ired., 97. (See Rev. Code, ch. 37, sec. 22 and 24.)
4. A post-nuptial settlement, made between husband and wife,
in which a greater interest in the property is secured to the wife
than was provided for in the marriage articles, is void as against
creditors, under the acts of 13 Eliz. and 1715. Ibid. (See Rev!
ode, ch. 50, sec. 1.)
5. No ante-nuptial agreement or transaction between husband
nd wife can he proved by *parol, to support a settlement made
iter marriage, to the obstruction of the husband's creditors ; for
iieactof 1785, which requires '• all marriage settlements and
her marriage contracts" to be registered within a particular
■me, to make them valid against creditors, must necessarily ex-
'ude all such contracts as in their nature do not admit of]regis-
■ation. Ibid. (See Rev. Code, di. 37, sec. 24 and 25.)
G. Marriage settlements must be proved within six months after
iieir execution, before a judge either of the superior or supreme
'•durt, or before a court of record; otherwise they will be void as
to creditors. Probate before the clerk of the county court, as in
the case of deeds in trust, will not be sufficient ; and an uuau-
t'lorized registration is not even notice. Smith v. Castrioc, 5
Ired., 518. (It seems they may now be proved before the clerk
of the countv court, or his deputv. Sec Rev. Code, ch. 37, sec.
2 and 24,) "^
7. A married woman cannot make a contract with her hus-
1 land, except through the intervention of a third person, to whom
the duty ofeiiforcing.it, in liei- behalf, belongs; and it miast be
710 HUSBAND AND WIFE.— A^.— VII.
by a deed to which she is a party. Barhee v. Armstead, 10
Ired., 530. _
See (Eegistration, 35-3()-37.)
YII. OF ACTIONS BY ASD AGAINST HUSBAND AND WIFE.
1. If a,/eme covert sne in her own name, for money earned by
her during- coverture, she shall recover, if her marriage be not
pleaded in abatement, as advantage cannot be taken of it on a
motion lor anon siiit. Qucere bv Haywood, NeivtonY. Bohinsdn,
2 Play., 121, (285.) S_. C. Tay.,^72, (50.)
' 2. Husband and wife must join in detinue for her slave, de-
tained before, and at the time of the marriage. Jolmston v.
Pasteur, Conf Kep., 464, (520.) S.. C, 2 Hay., 406, (495.) S. P.,.
Norfleet v. Harris, Conf Rep. 517, (564,)
3. Where the wile was an infant, when the act of 1(S06, relative
to parol gifts of slaves was passed, and became covert during her
infancy, the act cannot be set u]> against a suit brought by her
husband and herself; and in such action they may, and ought
to join. Allen v. Gentry, 2 Car. _L. Pi. GOJ), (411.)
4. Where a defendant in detinue holds adversely a chattel,,
claimed under a feme before marriage, the husband and Avife
must join; but where the defendant is a bailee, the right of tlie
husband accrues, and is complete, upon the marriage, and the
possession of the bailee is hispossession, and consequently he must
sue alone. Armstirmq v. Simonion, 2 Murph., 351, S.. C. N. C.
Tei::. R., 266, (61)0.)
5. Husband and wife cannot join hi detinue for a chattel, if
the liusbandhad actual or constructive possession after marriage,
for, by the marriage and such possession, the whole vests exclu-
sively in the husband. Spiers v Alexander, 1 Hawks, 67.
6. The husband of a feme cestui que trust cannot recover lier
interest in slaves, held by a trustee under a deed in trust, to be
divided between her and others, without joining his wife. Gillis
V. BIcKay, 4 Dev., 172.
7. Where a person has been admitted, on motion, under tlie
act of 1798, a party to a suit as the husband of a feme sole, by
whom the suit had been instituted, it is too late afterwards for
the defendant to object to the validity of the raamage, except
on an application for rescinding the order of admission as im-
providently made. AVhile such order remains- in force, no evi-
dence can be received, on the trial of the cause upon the issues,
for the purpose of impeaching the validity of the marriage. The
o1)jection should have been made, when the motion for admission
was submitted to the court, and the question then triecL Hohhs
v. Bush, 2 Dev. and Bat., 508.
8. If a woman sue, and afterwards marry, and the marriage is
not pleaded in ii\yd.ivvaQ.Tit puin darrein continuance, she may have
HUSBAND AND WIFE.— YII.-YTIL 711
judgment, and it cannot be reversed for error. Johnson v. E^uj-
land, 4 Dev. and Bat., 70.
il. The husband has entire control over a judgment confessed
to, or obtained by, his wife during coverture, and the proper Avay
for him to proceed to enforce it is by making himself a party by
sci fa.., as in case of a judgment obtained bv a feme covert dum
sola, who had married before execution. Ibid
10. Whenever a suit will survive to a wife, she may be joined
with her husband in the action. JVestv. Tilghman, 'il Tred., IGo.
11. An action upon the administration bond of an adminis-
trator, for a distributivti share belonging to a married woman,
must be brought on the relation of husband and wife, though
the husband mav have assigned his wife's share to a third person,
^Yafev. C/rtrZ-, iblred., 172.
12. Where the husband has possession of the wife's land, after
issue born, case, in the nature of waste, is the proper remedy for
an injury to the inheritance by cutting timber trees, and should
be iu the name of the husband and wife jointly. But, for an
injury to the crop, he must sue alone, and the statute of limita-
tions bars the action after three years. The rule is, where the
husband may sue alone, or may join his wife, the statute of limi-
tations bars; but when he imtst join his wife, the statute does
not bar, for it is her action. WiUiains v. Lanier, Busb. 30.
lo. For a trespass to the land of the wife, before marriage, the
wife is a proper party with the husband, in a suit for the same.
Hair V. Melvin, 2 Jones, 59.
14. A husband can maintain an action of ejectment on a sep-
arate demise by himself, though he claims under a deed made to
himself and his wife. Topping v. Sadler, 5 Jones, 857.
15. Where a husband and wife joined in a demise in an action
of ejectment, dated before they were married, it was held that the
action could not be sustained, Elliott \. Newhold, 6 Jones, 9.
IG. For an injury to the wife's land after coverture, she may
join with her husband in an action of trespass, and both husband
and wife may join with other tenants in common, for an injury to
their common property. Deans v, Jones, G Jones, 2o0.
17. In an action against a fenymanfor negligence in carrying
the plaintiffs wife across his ferry, whereby she was injured, it
is not necessary that she should be joiiied as a party plaintitF.
Crump V. BIcKay, 8 Jones, H2,
Vni. HOW FAR THE HUSliAKD IS KOUXD HY THE ACTS AND AD.MISSIOXS OF
HIS WIFE, UEFORE AND AFTER MARRIAGE.
1. Where the wife is the agent or servant of her hus1)and, her
acts and admissions against his interf st are admissible in evi-
dence. HtKjhes V. Stokes, 1 Hay., 872, (427.)
2. Husband suing, as administrator of another person, for
712 HUSBAND AND WIFE.— VITI-IX.
slaves, is not estopped by the deed of his wife, made while sole,
f'onveying the slaves to the defendant. Millison v. Nicliolson,
Con£ Rep., 499, (549.) S. C, 2 Hay., 306, (494.)
3. A husband may shov/ the idiotcy of his wife before covert-
ure, to avoid a deed made by her while she was in that condi-
tion. Ibid.
4. The husband is bound by the acts or declarations of his
wife, done or made while she is acting as his agent. Torrence
V. Graham,! Dev. and Bat., 284.
5. A feme covert may become an agent for her husband, and
such an appointment as agent may be inferred from his acts and
i'onduct respecting her. When the agency is to be inferred from
liis conduct, that conduct furnishes the only evidence of its ex-
tent as well as of its existence, and in solving all questions on
this subject between the principal and third persons, the general
rule is that the extent of the agent's authority is to be measured
by the extent oi his usual employment. Cox v. Hoffman, 4 Dev.
and Bat., 180.
6. The husband is responsible for any injury done to the prop-
erty of another person, by the negligence, carelessness or unskill-
fulness of his wife in her performance of his business, the wife,
in this respect, being considered as his servant. Ibid.
7. If a husband and wife live separate, and a person, having no-
tice that the husband does not hold himself liable for any debts
she may contract, trusts lier even for necessaries, he cannot re-
cover for them against the husband, unless he can show that the
wife had a good cause for the sejjaration. Pool v. Everton, 5
Jones, 241.
IX. OF THE LIABILITY OF A WIFE FOR IIIS ACTS DURING COVERTURE.
"1. A plaintiff cannot convert an action founded on contract
into one for a tort, so as to charge a/eme covert defendant. To do so ,
the tort complained of must be an actual trespass. Therefore,
where the plaintiff hired to the wife of A a horse, she acting as
the agent of her husband, and the horse was injured by immod-
erate driving, and the action was br()ught against the husband
and w^ife jointly, but abated as to the former by his death, it was
held that the action did not survive against the wife. Barnes
V. Harris, Busb., 15.
2. Where a feme covert, having a separate estate, but living
with her husband, contracted debts without the concurrence of
her trustee, and without charging them specifically on her sep-
arate estate, it loas held that she was not liable to pay them, and
•that her promise to do so, after the death of her husband, was
•r^'ithout consideration and void. Felton v. Reid^ 7 Jones, .269..
IDIOTS AXD LUXATICS 71 :>
IDIOTS AND LUNATICS.
1. The proper finding in an inqnisition of kmacy is that the
party is an idiot or huiatic, though it may answer to find that
he is of "insane mind," but not that he is "incapable of manag-
ing his aftairs," which is void. Armstrong v. Short, 1 Hawks, 11.
2. No person is entitled to a traverse to an inquest of office in
its proper and technical sense, under the Stat. 2 Ed. 6, so as to
vacate'the otfice, unless he be interested at the time of filing it.
But such an inquest, when offered in evidence, is only presump-
tive proof against all persons not parties or privies; held, there-
fore, that in' del)t on a bond given after an olSce was found,
where an inquisition was pleaded for the defendant, the plain-
tifli" might, in his replication, traverse the truth of it, and upon
the trial give evidence in support of his traverse. Ibid.
3. An inquisition of lunacy, Avhich appeared to have been
taken by the coroner and twelve freeholders, and returned to
the court, and by it confirmed, and from which it did not appear
that the lunatic was present, was offered in evidence to support
the plea of 72on comjios mentis, and it was held, that having been
receive by the county court as an inquest, and a guardian hav-
ing been appointed under it, it was admissible as the record of
an inquest. Arrington v. Short, 3 Hawks, 71.
4. The proceedings on an inquisition of lunacy are not void,
because no affidavit accompanied the petition to the court, nor
because the alleged lunatic was not present at the time of taking
the inquest, nor because the jury, in their inquisition returned to
the court, found that "he is lunatic and idiotic," they having also
found that " he is of nonsane memory.'" The former word should
be rejected as surplusage. Bethea v. McLennon, 1 Ired., 523.
5. It is generally proper that an affidavit should accompany
the petition, but this is a matter for the discretion of the court
to which the petition is addressed. Ihid.
6. The alleged lunatic has a right to be present at the inquest,
and if this right be denied him, it is good cause for setting aside
the inquisition. But where an inquisition, taken by order
of a court of competent jurisdiction, is returned to and confirmed
by the court, it is to be respected like other judgments of a court,
until it be reversed or superseded. Ibid.
7. The guardian of a lunatic cannot bring an action of eject-
ment, nor any other action at law, in his own name, though the
guardian of an infant may bring ejectment in his own name.
Broolis V. Brooks, 3 Ired., 3<S9.
8. A guardian of a lunatic may, by order of the county court,
rightfully sell the personal property of the lunatic for the pay-
ment of his debts, provided there Ije no fraud in the proceeding.
Howards. Thomfpson^ 8 Ired., 3G7.
714 IDIOTS AND LUNATICS, ETC.
9. Contracts with lunatics are not all absolutely void ', but sucli
as are fairly made with them for necessaries, or things suitable
to their condition and habits of life, will be sustained. And
when a person is so insane as to attempt to injure himself, and
to destroy his property, the services of a nurse and guard fall
within the class of necessaries, as defined by law. Richardson
'V. Stromi, 13 Ired., lOB.
10. X\\ action accruing to a lunatic must be brought in his
name, and not in that of his guardian. Green v. Kornenay^ 4
Jones, ^Q.
11. An inquisition of lunacy is not conclusive against a person
dealing Avith a supposed lunatic; but he may show that, at the
time of the contract, such supposed lunatic had sufficient ca-
pacity to make it. Parker v. Davis, 8 Jones, 4G0.
TNCENDrARY PUBLICAN TONS.
1. The delivery of a copy of an incendiary publication to OBe
individual, with an unlawful intent, is a circulation, within the
prohibition of the act, Rev. Code, ch. 34, sec. 16. State v. Worth,
7 Jones, 488. *
2. In a prosecution imder tlie act, it is not necessary to aver
or prove that tlie forbidden publication was delivered to a slave
or free negro, or Avas read in his presence. I hid.
3. A bound volume, having the tendency described iu the act,
is within the meaning of it. Ih'id.
4. A book, which denoujjces slavery as worse than theft, and
as leading to miu'der, and proclaims that it must be put an end
to, even at the cost of blood, is within the u^eanini!- of the act, as
tending to excite slaves to insurrection. I hid..
See (Evidence — In criminal proceedings and indictments, 118.)
INDECENCY.
See (Indictment. — Ftmn and matters relating thereto, ?^'2.\
INDIAN LANDS. 715
INDIAN LANDS.
I. The act of 17<So forbade entries or surveys to be made of
certain lands, set apart for the Cherokee tribe of Indians. In 1791,
this tribe, in a treaty with the general government, " relin(]^uish,
release and cede these lands." The right of the Indian tribes to
lands is regarded, by the Euroj^ean and American governments,
as a mere possessory right, and the cession of tliis' right by the
Cherokee tribe vested the right in North-Carolina, and the Uni-
ted States were the agents for North-Carolina for that purjiose.
Strother v. Catheij, 1 JMurph., 162.
'Z. The grant made by the Governor in 1717, to the Tnscarora
tribe of Indians, was absolute and unconditional, and did not
require the residence of the Indians upon the land. Sacarusa v.
Kim/, 2 Car. L. E., 451, (33(3.)
3. The proviso in the act of 174S, being in derogation of the
rights actually vested in the plaintiffs (Indians, ) cannot be re-
garded. But if the legislature of 1748 could rightfully superadd
the condition contained in the proviso, subsequent legislatures
had an equal right to modify or abrogate ft. And the acts of
1778 and 1802 make a different appropriation of the land, on
the happening of either of the events mentioned in the act of
1778, from tiiat made by the act of 1748 Ibid.
4. Clierokee Indians, in possession of land within the limits of
North-Carolina, reserved under the treaties of 1817 and 1819,
made between the United States and the Clierokee nation, are to
1)6 considered as purchasers of the lands; the exercise of power
by the commissioners of the United States being legitimate, and
the treaties having been recognized by several acts of our legis-
lature. The Indians need not claim under a grant issued in the
usual manner, but may derive title by a special grant, such as
that under which the university claims escheated lands, by vir-
tue of an act of assembly. Eu-hdah v. Wdclt, 3 Hawks, 155.
5. Under the 3d article of the treaty of 1819, between the
United States and the Cherokee Indians, the particular Indians,
residing within the limits of North-Carolina, to whom reservations
in fee simple were made, had a riglit to alienate the tracts reser-
ved as they thought proper, prior to, and independent of, any
act of the State legislatuTe. BelJc v. Love, 1 Dev. and Bat. 65,
6. The condition, annexed to the reservations under this arti-
cle, does not require a perpetual residence on the tracts reserved,
but only a notification ol mx intant to reside, which is a condition
precedent, and, when complied with, the estate becomes absolute.
But if this Avere otherwise, an individual could not treat the es-
tate as at an end, before the State enforced a forfeiture for a
breacli of tlie condition. Ibid.
7. Tlie right to a reservation of land, granted by the treaty
71(? INDIAN LANDS.
with the Cherokees in 1837, to each head of an Indian family,
ehoosing to remain in this state, does not attach to the hind
ceded by .the treaty of 1835. Sutton v. Moore, 3 Ired., Q)i).
8. Under the acts for the sale of the Cherokee lands, the pur-
chaser has a right, upon the certificate of his purchase from the
commissioners, to institute an action of ejectment in the name
<-)f the State, against any person in possession. And the person
so in possession cannot set up as a defence to this action, that he
had received a deed from the pin-chaser, which had never been
registered, but which was alleged to be lost or destroyed, by an
agent of the purchaser. State v. England, 7 Ired., 153.
9. Under the act of 1852, ch. 169, entitled "An act to bring
into market the lands pledged for the completion of the Wes-
tern Turnpike Koad," it is the duty of the entry taker to demand
and receive bonds, for the purchase money of the land, before he
takes the entry. ' Jarrett v. Kinc/fiey, 3 Jones, 488.
10. The acts of assembly relating to the sales, &g., of the
Cherokee lands, prior to the act of 18'52, confer special authority
md jurisdiction on the commissioners; and to give effect to a
. ;-rant issued by virtue of these acts, the cases to which they are
. '.':»tricted must be shown. Harshuio v. Taylor, 3 Jones, 513.
11. Where a general authority and jurisdiction is conferred i^n
■ ribunal, the action of such tribunal is presumed to be right
until the contrary is shown; but where such authority is special,
it must be shown by the party asserting the validity of its action,
that the prescribed state of iacts existed, which called for such
action. Ibid.
12. The title to the unsold Cherokee lands in the county of
■ laywood was, by the act of 1805, vested in the justices of that
;;ounty, and where their commissioner, whose powers and duties
vere limited, by the order of the court appointing him, to three
nontlis, executed a deed for a portion of said lands at the end of
'tiree years, it was held to be inoperative and void. Cooper v.
(ri6so7z,'6 Jones, 512.
13. Where a Cherokee Indian took a reservation of a certain
n-act of land for himself for life, with a remainder in fee to hie
■hildren, which he was authorized to do under the treaties of
817 and 1819, but which he was to forfeit should he voluntari-
,y abandon it, i^ luas held t\\?it his selling the land to a Avliite
; aan, and leaving it, was a voluntary removal therefrom, and w<^s
, forfeiture of the whole estate, so that his children lost all right
io it after his death. Welch v. Trotter, 8 Jones, 197.
See (Landlord and Tenant, 32.)
L\DianiEXT.— I.
■ii
INDICTMENT.
I. In what cases an indictment will lie. \l. Plea of former acquittal or con-
11. Form and matters relating thereto.
III. Of the trial, verdict and judgment.
IV. How a presentment is to be made, or
a bill found.
V. Effect of a nolle prosequi.
viction.
Viy. Of quashing 'udictments.
Yin. Variance betvreen the allegations
and proofs.
IX. Limitation of time within which an
indictment will lie.
I. IX WHAT CASES AN INDICTMENT WILL LIE.
1. Where a merchant's clerk liad sent goods from the store to
a person at a distance, with directions to sell them, and he had
not communicated this transaction to his principal, or any of his
other clerks, nor made any entry of it in the books, on an in-
dictment under the stat. 21 Hen. 8, ch. 7, (Rev. €ode, cli. 34
sec. 18,) the judges difiered on the question whether he could be
convicted under the statute, but agreed that he might be con-
victed of larceny at the common law. State v. Hiygins, Alar.,
'>2, (59.) , "
2. A person may be indicted for perjury on an affidavit not
signed by him. State v. Ransome, 1 Hay., 1.
?>. An indictment for a forcible trespass will lie against per-
sons for taking and carrying av/ay slaves, from the possession of
him M-ho has it. though done by the command of the real owner.
State V. White, 1 Hay., 13, (18.)
4. If a horse be stolen in one state or territory and be carried
into another, an indictment for larceny in the latter cannot be
supported; and upon a special verdict stating these facts, judg-
meiit must l)e rendered for th& defendant. State v. Brown, 1
Hay., 100, (110.)
;1 If an outhouse be so near a dwelling house, that it is used
therewith as appurtenant to it; as if it be within seventeen and
a half feet of it, burglary mav be committed in it. State v.
Twitty, 1 Hay., 102, (118.")
G. The State cannot divide an oftence. consisting of several
trespasses, into as many indictments as tht.re are acts of trespass,
that would separately support an indictment, and afterwards in-
dict for an oft'ence compounded of them all. State y, L/ylcs, 2
Hay., 4, (148.)
f. If a public officer, entrusted with definite powers to be ex-
ercised for the benefit of the community, wickedly abuse, or
fraudulently exceed them, he is pmiishable by indictment, though
no injurious effects result to any individual from his- miscon-
duct. State \. 6-7«.SY/o?r. Conf Kep., 38, (17G.)
8. The secretary of state, whose duty it_wa8, under.au act of
nS INDICTMENT.-^I.
the legislatiu-o, to issue land warrants under certain circunistaii-
C'Cfc!, was held liable to be indicted in this state for fraudulently
issidng- such warrants, though the title tc the land, for which the
warrants were issued, was in the United States, and not in this
si.ate. Ibid
i>. An indictment will not lie for a mere intention to pass coun-
terfeit bank notes, knowing tliem to be counterfeit, if no cul[)a-
ble ad be charged. State v. Fenny, 1 Car. L. li, 517, (130.)
10. Profane swearing, independent of the disturbance and in-
jury it may produce to those who hear it, is not indictable; but
when the facts will support a charge of it as a nuisance, it is in-
dictable. State V. Kirhy, 1 ]\Iurph., 25-1. S. P., State y. Filar,
1 Dev., 2G7.
1 1. An indictment for trespass in taking personal property can
onlv be supported when the taJiing is by force, or 'ji/an/j forti.
Slide V. Flowers, 2 Murph., '22b, S. C. 1 Car. L. \\. 97, (13.)'
12. If one gain. possession of a slave who has come upon his
land, he may protect himself and the slave from an attempt to
■j-etake the latter, made by one claiming pro])erty; and may use
Ihe Jiecessary force to retain possession of him. Il)id.
13. Where there is one continuing transaction, though there
r:i:iy be several distinct asportations in laAv, yet the party may
bvj indicted for the final carrying away, and all who concur are
■guiitv, though they were not privy to the first or the interme-
diate acts. ''State V. Trexler, 2 Car. L. E. 90, (188.)
14. An indictment will lie against the commissioners of a town
ibr culpable omission and negligeni'e in keeping the streets in
repair; because they are invested witli power to levy taxes, one
•object of which is to keep the sti-eets in good ordei'. Slate v.
Commissioners of FayetteviUe. 2 Car. L. li. 617, (419.)
1"). A person, who contracts with the county to keep a bridge
ill repair, mav be indicted for a neglect to do so. Si'ite v.
CroiceU; N. C. Term R, 254, (083.)
IG; Where defendants are bound to keep the streets of an in-
<'()rporated town in order, and three or four streets are presented
on the same day, the defendants should be indicted but once for
all; and if separate bills l)e found, a conviction of one may be
pleaded in bar of the others. Stale v. Commissioners of Fai/cttc-
i-ille, 2 I\Iurph., 371.
17. A pa})er writing in tliese words: "lleceived of J. D. his
Look account in full. J. L" is a receipt for money within the
Act of 1801, concerning forgery; it being prcn'cd that at the
day it bears date J. D. was indebted to -1. L. in a sum of money,
■upon an open account — so Avould be the AV(;>rd«: "lieceived the
above in full" at the foot of a,n account; and all debts are under-
tstood to be received, or paid in money, unless explained by some
other circumstance. State v. Dalton, 1 Hawks, 3.
18. To support an indictment for taking away prop^n-fy, it must
IXDIGTMENT.— I. 719
1)0 a violent taking from the actual possession of the owner at
the time. State v. JlrDoirell, 1 Hawks, 449.
19. A challenge to fight a duel, ovt of the State, is indictable,
for its tendency is to arouse the passions and produce an innne-
diatc breach oi" th<?. peace. State v. Farrier, 1 Ha^yks, 4S7.
•20. The selhug of unwholsome provisions, ]iot fit to be eaten
bv man, is an oiienec in anv person, indictable at common law.
S\'ate v. Smith, o Hawks, o7<S.
21. An indictment will lie against a person who was present,
aiding and abettnig in the eohnneneemeiit of an assault with in-
tent to rescue a prisoner, although liis fears prevented his going
all lengths wdth his party. Siaie v. Morri.% '6 Hawks, oii^.
22. Upon the construction of the act against a mother for con-
cealing the birth of her bastard child, it ivas heldihixt the corpus
</Liicti\\-iiB the concealing the death of a being, upon whomthe
crime of murder could have been conmnitted, and that, therefore,
if the child were born dead, and so shown to be by tlie mother,
ipon W'hom the burthen of that proof lay, the concealment Avas
■ot an ofience within the statute. State v. Joiner, 4 Hawks, 050.
(See Ivev. Code, ch. 34, sec. 28.)
2:3. A combination by two or more to do any unlawful act, or
cue prejudicial to another, or to the community, is indictable at
cnmmo'n law, as conspiracy; Iivwr, a combination by tvro to
cheat a third person, by making him drunk and playing falsely
at cards with him, is indictable at common law. Stater. Younger,
1 Dev., o57.
24. If three persons commit a trespass upoii property iji the
presence of the person in possession, their numl;)ers make it in-
dictable, though no actual force be used. Sta.tev. FisJier, 1 Dev.,
r>i)4
25. A fraud perpetrated upon an individual, without the use
of false tokens, or any deceitful practice aftecting the community
at large, and without the aid of a conspiracy, but by a false as-
sertion only, is not indictable. State v. Justice, 2 Dev., 199.
2(). It is"^not an otfence, either by common law or by statute,
iV)r a white man to gandtle Avitli a slave. State v. Feiitbcrton, 2
Dev., 281. (It is now indictable, see Kev. Code, ch. 34, sec. 116.)
27. In an indictment for a forcible trespass upon personal
property, there must be greater force tlian is expressed by the
words a ef «r»/w. The trespass must involve a breach of the
jjcace, or directly tend to it, as being done in the }»resence of the
prosecutor, to his toror or againt his will. State v, 3JiUs, 2
Dev., 420. .
2S. In an hidictment under the act of 1791, to prevent maim-
ing, the intent to disfigure is presumed from the act of maiming,
unless the contrary appear. And under the act, the offence is
complete, if the maim be committed on purpose, and icith i)itenf
720 INDICTMENT.— I.
fo disfigure, though without malice p'^ejxnse. State v. Qraivforch
2;Dev., 425.
29. A conspiracy to murder, unaccompanied by an intent to
r.ebel or make insurrection, is within the meaning, as well as
within the Avords, ofthe act of 1802, passed to prevent conspira-
cies and insurrections among slaves. State v. Tom, 2 Dev., bCAl
(See Eev. Code, ch. 107, sec. 35.) _
30. In an indictment for a. conspiracy against two, under tin ■
act, the acquittal of one is the acquittal of the other. Ilyid.
31. A retailer of spirituous liquors is not an ordinary keeper
within the act of 1801, to prevent excessive gaming, and is not
indictable uuder that act for permitting unlawful games to bi/
played in his house. State v. Hix, 3 Dev. 116. (He is now in-
dictable, see Rev. Code, ch. 34, sec. 76.)
32. • In the act of 1801, to prescribe the punishment of forgery,
the words "shall show forth, in evidence, any forged deed," &c.,
are confined to the exhibition of it as evidence upon a judicia I
proceeding, and are not equivalent to the words "utter and
publish" in the statutes against counterfeiting. State v. Briti,
H Dev., 122. (vSee Rev. Code, ck. 34, sees. 59, 60 and 61.)
33. The forging an order for the delivery of goods is within
the act; and one found in the possession of a forged order i^
presumed either to have forged it or procured it to be forged,
until the contrary appears. Ihid.
34. The act of 1794, to prevent owners of slaves from hirinr;
to them their own time, does not subject the master to an indict -
Tiieiit; the remedy being against the slave alone. State v. Cler -
on.% 3 Dev. 472. " (See Rev. Code, ch. 107, sec. 28 and 29.) _
35. The disturbing of a congregation assembled for religious
worship, by laughing and talking, and indecent actions and
grimaces, during, the performance of divine worship, is a misde-
meanor, mid. per se indictable. State v. Jasper, 4 Dev., 323.
36. An indictment, which states no unlawful purpose, and
sets forth no act which the defendants assembled to commit,
cannot be one for an unlawful assembly. Nor is one, which
charges no act of Adolence, nor an act calculated to inspire terror,
nor any attempt to commit an act of violence, which, if com-
mitted, would make the defendants rioters, an indiotment for a
riot or a rout. State v. Baldicin, Dev. and Bat. 195.
37.. Where a statute creates- an offence, and not only declares
the specific penalty, but also the mode in Vvdiich it shall be
recovered, that particular method, and no other, must be pur-
sued. Hence it is not an indictable offence fora justice of the
peace to celebrate the rights of matrimony, without a license
from the clerk of the county court, under the act of 1778, as
that act not only makes that an. offence, which was not so at
common law, but also annexes the penalty andl the mode of
iNDrcTJ^rE^^T.^I: 721
recovery. State v. Loftin, 2 Dev. and Bat. 31. (See Rev. Code,
ch. Q^^ sec. 6.)
38. A trespass to be indictable must involve a breach of the
peace, or manifestly tend to it, and must therefore be in the
presence of the owner, to his terror, or against his will. State
V. Love, 2 Dev. and Bat. 267.
31). The law confides to schoolmasters and teachers a discre-
tionary power in the intlietion of punishment on their pupils,
and will not hold them responsible criminally, unless the punish-
ment be such as to cause permanent injury to the child, or be
inflicted merely to gratify their own evil passions. K:)tate v.
Penderr/rass, 2 Dev. and Bat. 3(35.
40. In an indictment under the act of 1779 for seducing and
conveying away a slave, it ivas held that the seduction and con-
veying away must concur to constitute the offence; and that one
who did not himself seduce, or aid in seducing the slave, but
only assisted in the conveying away, could not be convicted as a
priiicipal felon. State v. Hardin, 2 Dev. and Bat., 407. (One
who aids in carrying away a stolen slave, knowing him to be
such, afterwards liable to be convicted as a principal. See Rev.
Code, ch. 34, sec. 10.)
41. The act of 181 G relates to the former one of 1809, and the
scope of both acts, or of the act of 1816 construed in reference
to that of 1809, is to make it an indictable offence to issue, pass
or receive small notes, checks or due bills, as a substitule for
money. Hence the intent that a note issued should pass current
as a substitute for money, or that in fact it was so issued and
passed, is an essential ingredient of the ofrence, and must be
averred in the indictment and proved on the trial. State v.
Bump reys, 2 Dev. and Bat., boo. (See Rev. Code, ch. 3G, sec.
5 and G.)
42. A master is not at liberty to contrive the escape of his
slave, who has committed a felony; but, if he be a magistrate, he
should not act officially against him, and is, therefore, not in-
dictable for declining to do so. State v. LeiqiL 3 Dev. and
Bat, 127.
43. An indictment will lie for disturbing a congregation of
})eople assembled for the purpose of divine service, and engaged
in the worship of Gcd, although it be nc^t in a church, chapel or
meeting house, permanently set apart by a religious .society for
divine worship. State v. Stcird', 4 Dev." and Bat., 358.
44. An indictment will lie for selling unwholesome provis-
ions, but they must be in such state as that, if eaten, they would
})y their noxious, unwholesome and deleterious qualities have
affected tiie health of those who were to consume them. State
V. Kortan, 2 Ired., 4().
45. On an indictment under the act in relation to the altering*
or defacing the marks o cattle, &c., if the act of altering;- or
4* °
722 INDICTxMEXT.— T.
defacing, See, be proved to have been ^vilfnlly done, it iiecessarilj'
follows that the intent was to defraud or injure tlie owner, un-
less there be proof to the contrar}^ Stale v. Bavi-e, 2 Ired., 153.
4G. It is no objeetion to a cojivietion on an indictment for
this offence, that the 'cattk, beast, &c., had, at the time the act
was done, sti-ayed from its owner. Ibid..
47. An indictment for a conspiracy, charging; the object of
the conspiracy to be to cheat and defraud the citizens at large,
or particular individuals, out of tlieir land entries, is not sup-
ported by evidence that the defendants conspired "to make en-
tries in the land office before it was opened, or before it was de-
clared to be opened, or after it was opened, for the puqjose of
appropriating the lands to their own use and excluding others.
State V. Tvammell 2 Ired., 379.
48.. An indictment, charging a person with disturbing " a re-
ligious assembly, connnonly called a quarterly meeting confer-
ence," cannot be supported. A meeting, the disturbance of
■which is an indictable offence, must be " for divine worship, "
•' divine service, " "religious worship or service," or something
of the same import. State r.' Fisher, 3 Ired., 111.
4i). The offence of riding or going armed with unusual and
dangerous Aveapons, to the terror of the people, is an offence at
common law, and is indictable in this state. State v. J-Iioitli/. 3
Ired., 418.
aQi A man may carry a gun for any lawful purpose ol busi-
ness or amusement; but he cannot go about with that or any
other dangerous weapon, to terrify and alai-m, and in such a
nujiner as naturallv will terrifv and alarm, a peaceable people.
Jlirt.
51. All persons, and not planters oidy, are subject to indict-
ment for not keeping up good fences, as required by the 34th
and 48th chapters of the Revised Statutes. State v. JBell, 3 Ired.,
")0(5. (See llev. Code, ch. 34, sec. 41, and ch. 48, sec. 1.)
ir2. In an isidictment for arson, a building, in which goods are
kept ibr sale by a retail merchant, is a store house within the
meaning ( f the act, Eev. Stat., ch. 34, sec. 1. State v. Sandy, 3
Ired., 570. (See Eev. Code, ch. 34, sec. 2.)
53. To constitute arson, the least burning of the house is suf-
ficient; and the charring of the floor to the depth of half an
inch is certainly sufficient. Ibid.
54. The Buncombe Turnpike Company are bound by their
charter to keep the road in good repair, and are indictable if
they suffer it to become ruinous. The president and directors
of the company are bound to exert all their powers, and apply
all their official means, to the keeping of the road in good order;
and for a default in the perlbrmance of this public duty, they
are indictable. St^fey. Fattoiu 4 Ired., IG.
55. A person is indictable for buying from, or selling to a
^lave-, oil liis own accourft, eveiti if the owuer of the slave have
.given ]iis permission fof- diat purpose, unless that permission be
in vriting. State v. Hart. 4 Ired 256.
5G. An authority cawnot be given by any person to the slav^e
of another, to sell an article, though that article be the property
-of the person giving the permission. IJnd,
57. Where a gate has been unlawfully erected across a public
•road, and the proprietor of the land, through which the road
passes, and on whicli the gate has been placed, afterwards sells
the land to A, who uevcr actwilly entered into the land but
leased it to others, who kept up the gate, A is not indictable for
the continuance of the nuisanoo. State v. Pollolc, 4 Ired., o03.
58. The })rofanation of SundaX''-, by performing labor on that
-lav, is not an indictable offence in this state. State v. WilllaiiiS,
4 ired., 400.
50. A marriage between a ^ hite and colored person, contrac-
ted in 1842, was void undent the act of 1830, and although this
^ict was repealed in "the i-ievised Statutes of 183G, yet it was
therein expressly pr^oViided that the repeal should not affect
right or actions, ciimes or prosecutions, arising befoi-e the re-
peal. State V. Ihoper, 5 ired., 201. (Such marriages are again
prohibited and declared void, see Kev. Code, ch. 68, sec. 7.)
60. Under the first clause of the 31st section of the 111th
chapter of th<e Revised Statutes, prohibiting masters from hiring
to slaves their own time, the master is not indictable, being only
subject to a penalty of forty dollars; nor is he indictable under
the second clause of that section, the process being ag.dnst the
slave and not against the master. State v. Clarissa, 5 ired., 221.
(.Sfc Rev. Code, ch. 107, sec. 28.)
<)1, The act of 1794 was not repealed by that of 1831, on the
■-subject of slaves going at large. They were intended to punish
<lilferent offences, and they are both now retained in the Rev.
•Suit., ch. Ill, sees. 31 and 32. Ibid. (See also Rev. Code, ch.
107, sees. 28 and 29.)
()2. To constitute the offence under the latter section, it is not
necessary that the slave should have hired his time. It is sufii-
<-ient if the master })ermit him to go at large as a freeman. Ibid.
63. Knowingly to pass a counterfeit bank note, for the sake of
gain, to any person, whether he know it to be forged or not,
i< a crime under the act of 1819. State v. Harris, 5 Ired.,'
287. (See Rev. Code, ch. 34, sec. 61.)
64. In the act to punish the burning (jf jails, c^c, the word
"or," before "malicior.sly," should be construed "and," so that
the burning must be both willful and malicious, to constitute the
offence provided against. State v. MitchvV, 5 Ired., 350. (See
Rev. Code, ch. 34, sec. 7.)
65. If a prisoner burn part of a jail, merely for the purpose of
ecting his escape, and not with the intent to destroy the build-
724 IOT)ICTMENT.— I.
ing, he is not guilty under tl-ie act. But althougli his main
intent may be to escape, yet if he intends- to burn down the
building, in order to effect his main design,, he is guilty. Ihid.
6G. If an intent tO' burn the building exist, the oiience is com-
plete, as in arson at con:fcmon law, however small a part may be-
consumed. Ihid.
67. When a person, who occupies a tract of land over which a
public road runs', keeps up a fence across the road, though he
did not originally erect it, he is liable to an indictment tor a
nuisance. State v. Hunter, 5 Ired., oGl).
(vS. It is only when the act or acts done by a person, or the
omission to act by one who ought to act, operate to the annoy-
ance, detriment o-r disturbance of the public at large, that the
offender is liable to indictment at common law. Hence, a sin-
gle act drunkenness, though it be in the presence of a crowd, is
not indictable, if the persons assembled were not thereby an-
noyed or disturbed. State v. Deberry, 5 Ired., 371.
1)9. A woman cannot be indicted for keeping a bawdy house,
merely because she is unchaste, lives by herself, and habitually
admits one or many persons to an illicit intercourse with her.
State v. Evans, 5 Ired , 603.
70. The offence of keeping a bawdy house consists in keeping
a house or room, and therein accommodating and entertaining
lewd people in the perpetration of acts of unchastity, meaning
acts between persons thus entertained. Ihid.
71. Keeping an open shop, and selling' goods, on Sunday, is not
an indictable offence in this state; profanation of Sunday being
pnnishable here only by certain pecuniary penalties, imposed by
the Legislature, and to be recovered before a justice of tlie
peace. " State v. Brooksbanl% 6 Ired., 73. (See Kev. Code, ch.
115, sec. 1.)
72. Falsely, wittingly and corruptly rubbing out, erasing or
obliterating a release or acquittance on the back of a note or
bond, or elsewhere, does not, according to the law of tliis state,
amount to tlie crime of forgery. State v. Tltornhurg, () Ired.. 7S.
73. An indictment will lie against any person who erects a.
fence across a pul)lic road which has not been discontinued in
the manner directed by tlie act. State v. Shvford, 6 Ired., 162.
(See Rev. Code, ch. 10 i, sec. 2.)
74. Falsely putting a witness's name to a bond, which is not
required by law to have a subscribing witness, docs not vitiate
the lx)nd, and is not a forgery. State v. GJierldn, 7 Ired., 20_(i.
75. A free person of color, who is employed to carry a pistol
from one place to aiiother, and who claims no right to use the
instrument, and has no intention of doing so, is not indictable
under the act of 1<S40, which prohibits free persons of color from
having arms in their possession without a license from the conn-
INDICTMENT.— I. 725
ty court. State v. Lane, 8 Ired., 256. (See Rev. Code, cli. 107,
sec. 66.) ^ . ,, -n ox i. 1
76. The act of 1846, cli. 70, alters the act m the liev. btat., ch.
34, sec. 7, so as to reduce the offence of burning a millhouse, &c.,
from a felony to a misdemeanor, and substitutes the punishment
of fine and imprisonment for that of death. State v. Upchurch,
9 Ired., 454. (See Kev. Code, ch. 34, sec. 103.)
77. Where a man is indicted under the statute for "knownig-
ly and fraudulently voting at an election," when he is not quali-
fied to vote, he cannot justify himself by showing, that lie was
advised by a very respectable gentleman that he had a right to
vote ; for the maxim, that " ignorance of the law excuses no man,'
.applies as strongly to this case as to any other. State v. Bvyett,
10 Ired., 336.
78. Permitting a man's slaves to meet and dance on his own
premises on Christmas eve, or other holidays, even thougli other
■slaves, with the permission of their owners, participate m the
enjoyment, and though some of the younger members of the fam-
ily occasionally join in the dance, does not constitute the offence
of keeping a disorderly house, nor any other indictable offence.
State V. Boyce, 10 Ired., 536.
70. The provisions of the act of 1811, Rev. Stat, en. 34, sec.
61, punishing the cheating by false tokens, &c., do not apply to
the case of conveyances o"f lands. State v. Burrows, 11 Ired.,
477. (See Rev. Code, ch. 34, sec. 67.)
80. Where the true ground of complaint was that the defend-
ant, by means of a forged paper, induced the prosecutor to execute
a deed calling for 35^ acres of land instead of 55i acres, there-
l)y defrauding the prosecutor, the indictment should distinctly
aver this fraudulent purpose; but though this be a frand, it does
not come within the definition of any crime or misdemeanor,
known either to the common or statute law. Ibid.
81. In an indictment for selling spirits to a slave, it is no de-
fence to the defendant to show that he did not believe the act
to be unlawful. When an act is unlawful and voluntary, the quo
(tninio is inferred necessarily from the act itself. State v.
Presw^W, 12 Ired., 103.
82. A proprietor of a mill, who cuts a canal across a public
road, whereby the passage along the highway is obstructed, and
those who are in possession of the mill, claiming under him and
using the canal, are liable to an indictment for such obstruction,
the one for creating, and the other for continuing the nuisance.
But if a bridge- be erected over the canal, neither is indictable
simply for suffering the bridge to be out of repair. State v.
Yarrell 12 Ired., 130.
83. Where a law imposes a public duty, the omission to per-
form the duty is indictable; but if it is not an absolute duty, but
.a conditionaf ane, dependent upon the honeat exercise of the
72G indictment;— I.
judgment of the person or pers-ons, to whom, it Is submitted™
whether it is to be performed or not, the omission to perform it
is not, per se, an indictable offease. Thus, where an indictment
charged that the wardens of the poor had omitted to make by-
laws, rules and regulations for the comfort of the poor, under the
act, Rev. Stat., ch. (S9, sec. 13, it ivas field that the indictment
w^ould not lie, because the duty imposed upon the wardens by
that act ^^'as a discretionary one, to be exercised as they might
deem expedient. SUde v. fVilliams, 12 Ired^ 172. (See Rev.
Code, ch. 86, sec. 10.)
84. One, who votes illegally at an election of a sheriff, cannot
defend himself against an indictment, upon the ground that the
election was conducted irregularly. State v. C'ohoon, 12 Ired., 178.
85. Under the Revised Statutes, ch. Ill, se^e. 31, a master is
not indictable for permitting his slave to go at large, hiring his
own time ; he is only subject to the penalty ok forty dollars, im-
posed by that section of the act; but the owner is indictable
under the 32d section of the same act, for permitting a slave to
go at large, as a free man, exercising his own discretion in the
employment of his time. State v. Nat, 13 Ired., 154. (See Rev.
Code, ch. 107, sec. 28 and 29.)
S'o. In an indictment under the act of I84(>, ch. 70, for injury
to a dwelling house, of which a lessee, whose term is unexpired,
has the actual possession, the property must be stated iiii the
lessee. But the act does not embrace the case of destruction! or
damage to buildings, &g., by the owner himself, and, in law,, the
lessee is the owner during the continuance of his term. State
v. 3Ju.son, 13 Ired., 341. (See Rev. Code, ch. 34, sec. 103.)
87. The 12th sction of tlie 34th chapter of Rev. Stat., in regard
to the offence of taking and conveying a free negro out of the
State, with intent to sell him as a slave, includes only cases in
Avhicli the taking is by violence ; and does not extend to cases
v\'here the free negro is induced to go by persuasion, seduction
or deception. State v. Weaver, Busb. 1). (The law is now altered,
so as U) embrace a ease like the present, see Rev. Code, ch. 34,
s c 12.)
58. The keeper of a shop for the sale of spirituous liquors,
who permits the promiscuous assembling about his shop of per-
sons, who cause disturbance by loud noises, quarreling and
swearing, such disturbance being the probable consequenceo f
his conduct, is indictable for keeping a disorderly house. State
V. Thornton, Busb 252.
89. It is a misderajcanor in ofhce, for a justice to sell or (rans-
fer a judgment rendered by liimself, or by any other justice, if
in his possession, virtnte ojfi'-'iir ^^^ ^''^^'^ making it his duty to
keep and preserve such judgments. State v. Zacharyr Busl)., 432.
90. An indictment will lie against one who sells spirits to a
slave, though he has. a permit from his ma&ter, which states that
INDICTMENT.— I. 727
the defendanx ftnght sell and deliver to said slave "ardent spir-
its, whenever he shall apply for the same during tlie present
year," snch permit being void, as being in evasion of the act of
assembly. State v. Hyinan, 1 Jones, 59. (See- Rev. Code, eh.
34, sec. 87.)
91. It is not indictable to deliver spirituous liquors to a slave
at night, upon the order of his overseer, for the overseer's use.
State V McNah\ 1 Jones, 180.
92. Where, by a private act of assembl}^ a county court was
forbidden to grant a license to retail spirituous liquors by the
small measure, witliin the limits of an incorporated town, with-
out a Avritten recommendation from tlie commissioners of such
toW]i, and it appeared from the records of the county court tliat
they granted a license to retail in such town, withcmt such writ-
ten recommendation, the person obtaining such license is not
thereby protected from an indictment. State v. Moore, 1 Jones,
27().
98, Where the defendant sold a quart of spirituous liquor, un-
der an agreement that the seller was to retain it in a separate
vessel, and the buyer was to have access to it Avhen he pleased,
and, under this agreement, he drank the whole at various times,
it was held that^ in the absence of proof that the parties intended
the trade as an artifice to evade the statute, the transaction was
not an indictable offence. State v. Bell, 2 Jones, 337.
94-. Whenever a duty is imposed upon certain persons by law,
the performance of which duty concerns the public, the omission
to perform it is an indictable offence. State v. Cormnission-
ers of Baltujh, 3 Jones, 399.
95. A\^here the commissioners of a town are empowered and
nquirecl, to use certain means for having the streets of the town
kept in repair, and the inhabitants of the town are by the same
act exenq^t from working on the streets, the commissioners are
indictable if they neglect to perform the duties required of thera.
Ibid.
9(). WherCf on the trial of an indictmeiit for trading Avith
slaves, the agent of the defendant testified that he had general
instructions from his principal, not to traffic with slaves witliout
a written permit; it was held that although this, if true, tlirew
the onus upon the State of further proof of the defendant's guilt,
yet the judge might leave the enquiries to the jury, whether
tliese instructions had been abrogated, and whether the defend-
ant had s}>eeially approved of tlie act. State v. Privetf, 4 Jones,
loa
97. AVhere a slave handed to a free negro, in the shop of a
retailer of spirits, money which he immediately handed to the
retailer, who in return delivered him a quantity of spirits which
he immediately handed to the slave, it ivas hetd that the free
negro was not guilty, under either of the acts, Rev. Code, ch.
728 INDICTMENT.— I.
34, sec. 87, or ch. 107, sec. 67, of selling or giving spirits to the
slave. State v. Hopkins, 4 Jones, 305. S. P., State v. Wright,
4 Jones, 308.
98; If a statute, npon which a bill of indictment has been
found, be repealed, the indictment can no longer be sustained.
State V. Cress, 4 Jones, 421.
99. If one person, by such abusive language towards another
as is calculated and intended to bring on a fight, induces the
other to strike him, he is guilty of an afiray, though he may be
unable to return the blow. State v. Perry, 5 Jones, 9.
100. An indictment will lie against one who gives an unlaw-
ful vote, though he and others may have thought it to be hiMd'ul,
and even the fact that the inspectors of the election thought it
was lawful for him to vote will be no defence, if they did not
decide so upon a full statement of the facts made to them. State
V. Hart, G Jones, 389.
101. An indictment for arson for burning a house, built for a
dwelling house, but uninhabited at the time, cannot be sustain-
ed for the felony mentioned in the 2d section of the 34th chap-
ter of the Rev. Code, but may be for the misdemeanor mention-
ed in the l03d section of the same act; and upon a verdict of
guilty, judgment may be pronounced upon the prisoner for the
misdemeanor. State v. Clarl\ 7 Jones, 167.
102. A person to whom a free negro is hired by the court, for
the payment of a line under the act, Eev. Code, ch. 107, sec. 75,
is indictable for beating him for an unla^vlul purpose, or for mal-
ice. State V. Norman, 8 Jones, 220.
103. The willful and malicious setting fire to the house of an-
other, the burning of which is only a misdemeanor, will become
a capital felony, if a dwelling house, or barn with gTain in it,
be thereby burnt, where such l)m-ning is the probable conse-
quence of the first illegal act. State v. Laughlin, 8 Jones, 354.
104. The burning of a crib, with grain in it, is not within the
meaning of the Eev. Code, ch. 34, sec. 2, Avhich makes it a capi-
tal felony to burn a barn with grain in it, the buildings not be-
ing the same, either in law or in fact. Ibid.
105. A house seventeen feet long and twelve feet wide, setting
on blocks in a stable yard, having two rooms in it, one quite
small used for storing refuse corn, and the other used for storing
peas, oats, and other products of the farm, is not a barn within
the meaning of the statute. Rev. Code, ch. 34, sec. 2, the burning
of which is made a capital felony. State v. Laughlin, 8 Jones,
455.
106. A house eighteen feet long and fifteen feet wide, built of
logs notched up, the cracks inside covered with rough boards,
having a good plank fioor and a door about fom- feet high, and
containing, at the time of the burning, a Cjuantity o-f corny peas
and oats, is not a barn within the meaning of the statute. Rev,
INDICTMENT.— T.-IL 729
Code, cli. 34, sec. 2, though it was the only building- on the farm
"used for storing the crop. State v. Jim, 8 Jones, 459.
107. Buying of, and receiving from, a slave, corn, or other for-
bidden articles, on the slave's own account, is indictable under
the Rev. Code, ch. 34, sec. 85, though the owner, without the
knowledge cif the trade, is present, and knows what is going on,
but has given no written permission for the trading. State v.
Honeycut, 2 Winst, 51.
108. If a slave, livingin a house to himself, keeps a boarding
house for his own livelihood, and the master, knowing it, exer-
cises no control over him or his business, it is an indictable of-
fence within the Eev. Code, ch. 107, sec. 29. State v. Brown, 2
Winst., 54.
See (Arrest, 4-5.) (Cattle and other live stock, 6.) (Con-
tempt, 7.) (Felony.) (Justices of the peace — Of the responsi-
bility of Justices, 2.) (Highway, 3-4-5-7-13-33-43.) (Gaming
— What gaming is made indictable.)
n. FORM AXD MATTERS RELATING THERETO.
1. In an indictment tor murder, the offence must be charged
in the body of the bill, to have been committed within the dis-
tiict, over which the court has jurisdiction ; it is not sufficient
trhat the caption names the district. Thus, when the State was
divided into districts, an indictment, charging the offence to
have been committed in Beaufort county, without adding " in
the district of Newbern," was arrested. State v. Adams, Mar.,
30. (21.)
2. The length and depth of a wound need not be stated in an
indictment for murder. United States v. Uanw'er, 2 Mar., 79,
(134.) {State v. Owen, 1 Murph., 452, is, contra, but such descrip-
tion is rendered unnecessary by statute. Rev. Code, ch. 35, sec.
14. State V. 3Ioses, 2 Dev., 452.)
3. Things written may be described in an indictment, eilher
by the tenor, or according to the substance. If by the tenor,
the V'Cry words must be lollowed, though the omission of a letter,
not altering the word, is not fatal: if by the substance, you need
not use the very words, but if you describe the same sense and
meaning it will do. As to words spoken, there can be no tenor
of them ; and therefore, wliere the sense and meaning of the
words set down in the indictment are precisely the same with
those proved in evidence, though not the very same words, the
evidence will support the indictment; but then the meaning
must be evidently the same, without the help of any implica-
tion or anv thing extrinsic. State v. Bradley, 1 Hay., 403, (404)
and 463. (533.) S. P., State v. Caffeij, N. C. Term, Rep. 272, (694.)
S. C, 2 Murph., 320.
4. An indictment in the county court for extortion, stating
730 INDTCT]\rENT.— IL
tlie_ day on wMcli tlie offence was- committed in figures, and also
omiting the woi-d extorsively in clim-ging the taking tlie unlaw-
ful fee, may be supported under- tiie act of 1784. (See Rev.
Code, cb._35, sec. 14.) Stcde v. Dickens, 1 Hay., 40(5, (468.)
5. An indictraent for larceny should state in whom the pro-
perty w^as, or tlmt it was the property of some person unknown,
if the fact were so. To omit this is a fataf defect. State v.
Haddock 2 Hay., 1(52, (348.)
(). The omission of a figure in^ the' description of an instru-
ment forged, in an indictment for forgery, is fatal. State v. Street,
Tay., 158, {•:)8.)
7. The words " good and lawful men,"" in the caption of an
indictment, inquest, &c., mean freeholders. State v. Glasnow,
Conf Eep. 38, (17(5.)
8. In an indictment for murder, the- omission of the letter "a"
in the word "breast," in the description of the place of the
wound was held to be fatal. State v. Carter, Conf Eep., 210,
(317.) S. C, 2 Hay., 140, (312.) Qlmere, whether it would
be so now. See Rev. Code, ch. 35, sec 14.)
9._ An indictment charging the offence to have been commit-
ted in November, 1801, and in the 25th< year of American Inde-
pendence, held to be bad, and the judgment arrested, because
the offence is chajrged to have been committed in two different
years. State v. Hendrichs, Conf Rep., 3(51), (445.)
10. It is not essential to the validity of an indictment that it
should be signed l)y the prosecnting officer: State v. Vincent,
1 Car. L. R., 493, (105.)
11. The caption of an indictment must describe the court be-
fore Avhich it is found, so that it may be seen that the court can
exercise jurisdiction over the offence charged. State v. Sutton,
1 Murph., 281. (Overruled, see State v. ^ Wasden, N. C. Term
Rep., 163, (596.)
12. The prosecuting officer for the State has a discretionary
ix»wer to endorse the governor as prosecutor on bills of indict-
m.e#t, whenever he may thiidv the public interest requires it.
State V. EagJlsh, 1 Murph., 435.
13. In an indictment for murder where the death is caused by
a wound, bruise or other assault, the stroke must be expressly
laid. But an indictment charging "that A. B., with a certain
stick, &.C., in and upon the head and face of C. D., then and
there did strike and beat, giving to the said C. D., then and
there, with the stick aforesaid, in and upon the head and face of
tlie said C. D., several mortal wounds, of which said several
mortal wounds tfe^e said C. D. instantly died," is good; for there
is in the first clause' a* direct allegation of a stroke, and the par-
ticiple givinr/, and the words then and there, connect the allega-
tion with the mortal ivounds in the second clause. State v.
Owen, 1 Murph., 452.
INDICTMENT.— II. 731
14. In an indictment charging " that A feloniously and of bis
malice aforethought assaulted B, and with a sword, &c., ihen
and there struck him," &c., the first allegation of /elonioushf and
of his mciUce aforethought, appli€»i to the assault, extends also to
the stroke to which it is essential. Ihid.
15. When, in an indictment for murder, the death is charged
to be caused by a wound, a description of the wound must be
set forth in the indictment, its length, breadth, depth, &c., Avherf'
they are capable of description ; and the omission of such de-
scription is fatal to the indictment. But when the death' m
caused by a bruise, a description of its dimensions, &c., is not
necessary. Ibid. (See /State v. Idoses, 1 Dev., 452, and Rev.
Code, ch. 35, sec. 14.)
IG. An indictment on a recent statute is sufficient, if it state
a time, which is after the statute Avent into operation, and aver
tnat the act Avas done "against the fonn of statute in such case
made and provided." State v. Ballard, 2 JMurph. 18(5.
17. In an indictment for forging a bond, attested by a wit-
ness, it is not necessary to describe it as being' attested by the
witness, attestation not being essential to the instrument as a
bfiud. Ihid.
18. In an indictment against an individual, it is not necessary
to describe him by the addition of his occupation, Occ. Siate v.
Netvnvnis, 2 Car. L. R., 74, (171.)
19. An indictment for stealing a slave must charge the pro-
perty to be in the executor, and not as that "of the deceased"
testator. Stale v. Davis, 2 Car. L. K, 291, (271.)
20. An indictment, stating that the defendant, on a certain
day and year, with force and arms, at and. in a certain county,
a male slave, called, &c., the property, &c., of the said county,
feloniously, &c., is sufficient, after a verdict, without the words
"then and there being found," or Avhat is technically called the
ad tunc et ibidem. State v. Sparroiu, N. C. Term E., 93, (530.)
21. A caption to an indictment is only necessary when the
court sits under a special commission; and a mistake in the cap-
tion will not hurt an indictment found in a court,. Avhich sits by
the anthoritv of a public law. State v. JVasden,. N. C. Term 11.,
1()3, (591),) "^
22. An indictment for perjury in s -earing to cin affidavit was
" in substance and effect following," &c., and then assigned that
defendant swore he did not know a writ was returned against
hira ill the above sidt, whereas the affidavit had the word case
instead of suit, held that the variance was immaterial, as the in-
dictment did not profess to give the t('nn7\ State v. Cafey, 2
:Murph. 320, S. C. N. C. Term R., 272, ((594.)
23. An indictment, charging the defendant with forging a re-
ceipt against a "book account," is too indefinite. The term is
not known to the laAv, and, in common parlance, may mean
732 INDICTMENT.— n.
money, goods, labor, or whatever may be brought into account.
Had the charge been forging an acquittance for goods, the evi-
dence of forging the paper described in the indictment would
have been proper for the jury. The paper described was : " Sept.
3d, 1816. Eeceived of James Dalton his book account in full.
John Logan." State v. Dalton, 2 ]\Iurph, 379.
24. At common law rape was a felony, but it was afterwards
changed to a misdemeanor, before the stat. of West. 1st. By that
statute the punishment was mitigated, but by stat. West"! 2nd,
the offence was again changed to a felony, and hence its present
punishment as a felony is by statute, and consequently an in-
dictment for rape must conclude against the form of the statute.
State V. Dick, 2 Murph., 388.
25. An indictment for breaking a dwelling house in the day
time, no person being therein, and feloniously taking a bank
note of tlie value of five pounds, ouglit formerly to liave conclu-
ded against the /br;», of the statutes, to make out a capital felony,
because it depended for that purpose on the two statutes of 1806
and 1811. State v. Jim, 3 Murph., 3. (The act of 1806 which
formed the 8th section of the Rev. Statutes, ch. 34, was repealed
by the act of 1844, ch. 22, and of course is not contained in the
Rev. Code.)
26. If a statute cveate an offence, or alter au offence at com-
mon law, as by turning a misdemeanor into a- felony, the indict-
ment must conclude against the form of the statute; and if an
offence be made so, not by one statute only, but by two or more
taken together, the indictment must conclude against the form
of the statutes. Ibid. (The defect of concluding against the
form of the statute, Avhen there are two statutes, and vice versa, is
now cured by Rev. Code, ch. 35, sec. 20.)
27. An indictment for murder, which sets forth the tiiyie and
place of maliinr/ the assault, although it does not repeat them as
to the mortal Now, may be sustainerl by virtue of the act of 1811.
State V. Cherry, 3 Murph., 7. (See Rev. Code, ch. 35, sec. 14.)
28. An indictment under the act of 1779 charged that A did
"steal, take and carry away" a slave, &c., " contrary to the act
of the general assembly in such case made and provided;" he'd
that the benefit of clergy was taken away on a conviction on this
indictment, although it does not charge that the stealing was
with an irdent to sell or dispose of to another, or appropriate to .Ids
men nse. Stcde v. Jernir/an, 3 Murph., 12. (The act concerning
the stealing, &c., of slaves is altered in several particulars. See
Rev. Code, ch. 34, sec. 10.)
29. An indictmeiit is a compound of lawand fact, and must
be such that the court can see what is the alleged offence. Hence
it is not sufficient to charge "that the defendant was a common
Sabbath breaker andprofaner of the Lord's day, commonly called
Sunday, and, that he, ou divers Lord's days, being Sundays, did
INDICTMENT.— IT. 733
keep a certain open shop, and then and tliere sold and exposed
to sale divers goods, wares and spirituons liquors to negroes and
others, to the great damage of the good citizens of the State/'
&c. Slate V. Broicn, 3 I\lurph., 234.
30. An indictuient, which charges " that the defendant was
a common gross and notorious druidcard, and that he, on divers
days and times, got grossly drunk," is not sufficient, because it
is not stated that the offence was committed in public, so as to
make it a common nuisance. State v. Waller^ 3 Murph., 22i).
31. In an indictment for a riot in pulling do^Vn a dwelling
house, it must be set forth whose house it is. If a person inhab-
it a dwelling house as the wife, guest, servant, or part of the
family of another, it is in law the occupation of such other per-
son, and must be so laid in the indictment, and not as the occu-
pation of the wife, guest or servant. State v. dlartiJi, 3 xMurpli..
533.
32. In an indictment for the murder of a slave, it need not be
stated whose property the slave is, and if it be stated, it is a
question, whether it need be proved as laid in the indictment.
State V. Srott, 1 Hawks, 24.
33. All that is necessary with regard to laying; the time in an
indictment, is that the offence shall appear to have been com-
mitted before the finding of the bill, except in those cases where
the time forms part of tlie ofience. State v. Hancy, 1 Hawks.
460. _ '^
34. In general, the time is not traversable, and if it be laid
after a scilicif, and be rt-pngnant to the time laid in a former part
of the indictment, the scilicit must be rejected as surplusage.
Ibid.
35. In an indictment for sending a challenge, it is not neces-
sary to set out a copy of the challenge; and if an attempt be
made to do so, and it varies slightly from the original, as by the
addition or omission of a letter, ho way altering the sense, the
variance is not fatal, and is cured after verdict. State v. Far-
rier, 1 Hawks, 487.
30. An indictment for forgery should not only set forth the
tenor of the bill or note, but should pvufvss to do so. State v.
Twiltij, 2 Hawks. 248.
37. In an indictment under the act of 1810, to punish the
making, &c., of counterfeit bank notes, if the note, alleged to
Jiave been passed, be of a bank not Avithin the State, the indict-
ment sliould aver that such bank exists, by which the counter-
feit note pur|)nrts to have been issued. Ibid. (See Rev. Code,
. ch. 34, sec. (JO.)
38. Where an indictment is framed on a statute of thirty years
standing, which prohibits an offence after a specified time, it is not
usual or necessary that it should allege expressly that the offence
731 INDICTMENT.— IJ.
was committed after the making of the statute; otliei'wise if the
statute be a recent one. State v. Chandler, 2 Hawks, 439.
39. If a bill of indictment be found tnie, the name of the
foreman of the grand jury subscribed with the initials F. G. J.,
or without any addition at all, is sufficient, if it appear from the
records of the court, that the person whose name is subscribed,
is the foreman of the grand jury. Ihi<t
40. In an indictment, the words "false, forged and counter-
feited promissory note, commonly called a baidi note, purp rting
to be a good and genuine bank note of one hundred dollars, on
the bank of the Stvite of South Carolina," contain a sufficient aver-
ment of the existence of such a bank as the bank of the State
of South Carolina. State v. Ward, 2 Hawks, 443.
41. Where an indictment charges a defendant with forging a
banknote "purporting to have been issued, &c., promising to
pay, &c ," it must be understood as description of a bill, purport-
ing to promise, as well as purporting to have been issued. State
V. Tu-itiy, 2 Hawks, 449.
42. An indictment, containing in its caption a statement of
the term in these words, "fall term, 1822," and in the body of
the indictment charging the time of the offence in these words.
" on the first day of August in the present year," was held good.
There is no necessity for stating any time in the caption of an
indictment found in the county or superior courts. State v.
Haddoch 2 Hav/ks, 4(il.
43. An indictment for murder, which stated that A. B., " late
?)f Bladen county, &c., with force and arms," &c., was held to
contain a sufficient description of the place where the murder
was alleged to have been committed. State v. Lonmn, 3 Hawks,
3 75.
44. If an indictment charge an offence to have been commit-
ted on a day which is yet to come, it is as defective as if ]io day
Avere laid. State v. Sexton, 3 Hawks, 1(S4.
45. Indictments are not within the statutes of /eo/<«7,5; being
found by a grand jury upon oath, the court cannot amend them
withouttlie concurrence of the grand jury which found them. Hi \
4(). An indictment charging defendant with having in his
possession " one pair of dies, upon which were made the likeness,
similitude, figure and resemblance of the sides of a lawful
Spanishmilled silver dollar, &c., for the purpose of making and
counterfeiting money in the likeness ajid simiHtude of Spanish
milled siver dollars," was I/eld to charge with sufficient certainty
the offence designated in the act of 1811. Slate v. dhliiis, 3
Hawks., 191. (See Rev. Code, ch. 34. sec. 65.)
47. An indictment charging that the defendant "with force
and arms at the hoiise of one S. R., situate, &3., did then and
there, wickedly, maliciously and mischievously, and to the terror
and dismay of the said S. 11., fire several guns," is sufficient as
IXDICOfENT.— IL 735
an indictment fen- a forcible trespass, as distingnislied from a
mere civil trespass. State v. Langford, 3 Hawks!, 381.
48. It is improper to lay an ofiencc to have been committed
after the finding of the indictment; but if a day certain be laid
before, the other may be rejected as surplusage. Stale v. Wood-
man, 3 Hawks., 384.
49. In an indictment for stealing a bank note, a description of
it in the following words "one twenty dollar bank note on the
State Bank of Korth Carolina, of the value of twenty dollars,"
is good. State v. Bout, 3 Hawks., (318.
50. An indictment under the act of 1811, concerning the use
of false tokens, S:c., should state that the cheat was accomplish-
ed by means of some token or false contrivance, calculated to
inipuse on the credulity of ordinary men. A mere lie is not
within the meaning of the act. State v. Simpson, 3 Hawks..
(;20. (See Rev. Code, ch. 34, sec. 67.)
51. Promissory notes are not of themselves public tokens,
vrhile bank notes are; therefore, an indictment for a cheat at
common law, by passing certain "promissory notes" as. and for
bank notes, without stating that they resembled bank notes,
cannot be sustanied. State v. Patillo,'4: Hawks., 348.
52. An indictment charging that the defendant stole " a par-
celof oats" is sufficiently certain. State v. Broicn, 1 Dev., 137.
53. An indictment for murder, in which it does not appear
that the death happened within a year and a day after the wound
wa_s inflicted,_is fatally defective. State v. Orrell, 1 Dev., 139.
54. In an indictment for homicide, it must appear tliat the
deceased died in the county in which the bill is found. 1 bid.
(Prisoner to be indicted in 'the county where the assault was
made whether the deceased died in an'other county of the Slate,
or out of the State. See Ptev. Code, ch. 35, sec. 27 and 28.)
55. In an indictment for a rape, or for an assault with an in-
tent to commit a rape by a colored person, the words " forcibly
and against her will" are essentially necessarv. State v. Jim, 1
Dev., 142. (See Pev. Code, ch. 107, sec. 44.)"^
5(). In an iudictment, false spelling, which does not altojr the
meaning of the word misspelt, is no ground for an arrest of the
judgment. State v. 3IoUer, 1 Dev., 2(;3,
57. An indictment, under the act of 1825, for coiicealing a
slave on board of a ship with intent, &c., which did not charge
the prisoner to be in any way connected with the ship, in which
the slave was alleged to have been concealed, was held to be fa-
tally defective. State v. Johnson, 1 Dev., 3()0. (The act of 1825
is c()ml)ined with others, and modified in the Rev. Code eh 34
sec. 11.) ' • .
_ 58. The misspelling a name in an indictment, where the sound
IS not altered, is unimportant. State v. Upton, 1 Dev., 513.
59. To constitute forgery at the common hnv, the intent to de-
736 INDICTMENT.— II.
fraud must either be apparent from the false making, or become-
so by extrinsic facts; therefore an indictment , which charged the
false making to have been in the alteration of an order given by
the defendant, without charging that the alteration was made
after it was circulated, and had been taken up by him, w^as held
to be fatally erroneous. State v. Greenlee, 1 Dev., 523.
(30. An indictment on the acts of assembly, prohibiting the
sale of spirituous liquors by a measure less than a quart, which
charges the retailing to be " by the small measure" is defective;
the words " less than a quart " should be added to the above de-
,scription. State v. Shaiv, 2 Dev., 198.
(31. Where one statute creates an offence, imposes a penalty
and gives an action to recover it, and another makes the oifence
indictable, as in the case of overseers of pul)lic roads, the indict-
ment should conclude " against the form of the statutes." State
V. Pool., 2 Dev., 202. (This is not now material. See Rev. Code,
ch. 35, sec. 20.)
62. An indictment on a statute need not negative a provnso,
which withdraws a case from its operation; but where the pro-
viso ad(is a qualification to the enactment, so as to bring a case
Avithin it, wliich, but for the proviso, avouIcI be without the
statute, the indictment must show the case to be Avithin the pro-
viso; therefore an indictment tinder the act of 1790, against
bigamy, which avers that the first wife Avas living at the time
of the second marriage, is good, without an averment that the
first marriage then subsisted. Stale v. Norman, 2 Dev., 222.
(See Eev. Code, ch. 34, sec. 15.)
63. In an indictment for forcible trespass ttpon personal prop-
erty, actual possession by the prosecutor must be averred; but
an averment of the legal possession of the prosecutor and "that
the defendants, with strong hand, unlawfully, violently and
forcibh^ did seize, arrest and take from the prosecutor," &c., Avas
held sufficient. State v. Mills, 2 Dev., 420.
64. An indictment for forgery must contain an exact copy of
the forged instrument. And when a bank note had been forged
by raising its amount, and the sum mentioned in its body had
been erased and never filled up again, it was held that it Avas
]jro[)er to set it out with a blank. State v. Dourden, 2 Dev.,
443.
65. As a bank itote from its tenor purports to be of A^alue, it
is unnecessary to aA^er in the indictment that itAvas for a specific
sum. And an averment of the legal A'-aliclity of an instrument
is never necessary in indictments for forgery, uidess the instru-
ment may, or may not, from its tenor, be of any A-alidity. Ihid.
loQ). By the act of 1(S11, all defects in indictments are cured,
except the omission of an averment of facts and circiunstances,
which constitute the crime charged. Notliing need be stated,
of Avhich proof is not required on the trial ; therefore, in an in-
IXDITMEXT— II. ni
dictment for murder, it is necessary to aver that a mortal wonnd
was given, but the size and nature of the Around being matters
not material to tlie description of the offence, nor a necessary-
part of the evidence, its dimensions need not be stated. State
V. Moses, 2 Dev., 452.
67. An indictment concluding " and the jurors, " &c., omit-
ting the word "so" is sufficient. Ihid.
6S. An averment of the time, when an offence was committed,
is unnecessary, unless the time is a constituent part of the offence.
Such an averment is frequently made, where oftences after a
certain specified day are made criminal, or wliere the statute in-
creases the punishment; but if seems that it is not now necessary
in any case. State v. Sam, 2 Dev,, 567.
69. An endorsement by the foreman of the grand jury of the
initial letter of his christian name, Avhcre the record of his ap-
pointment states his name at length, is not a material variance.
State V. Collins, 3 Dev., 117.^
70. In an indictment against a person 'of color for an attempt
to commit a rape upon a white female, it is necessary to charge
that the assault was made witli an intent to commit a rape. An
allegation that the prisoner feloniously attempted, to ravish is
insufficient. State Vv Blartin, 3 Dev,, 321).
71. AVhere acts are laid in an indictment at several times,
without any certain day as to any of tJie acts, the indictment is
bad altogether; but where they are laid on some day certain,
and also on other days uncertain, it is void only as to the uncer-
tain days, and sufficient as to the parts to which the certain
time is annexed. State v. Jasi^cr, 4 Dev., 323.
72. Where a county is named, even in the caption or margin
of an indictment, the words "in said county," or "in the county
aforesaid," in the body of the indictment, will have sufficient
reference to the county in the margin or caption. State v. May,
4 Dev. 328.
73. In an indictment for stealing a slave, it is sufficient to set
forth (he name of the owner of the slave after a svilicit. Ihid.
74. The connnissioners of a town are not, of common right,
bound to repair the streets, and therefore an indictment against
them, for not repairing, must set forth how that obligation has
been imposed upon them, ^tate v. Commissioneis of Halifax, 4
Dev., 345.
75. In an indictment against the commissioners of a town,
it is not sufficient to allege a general breach of duty, but tlie in-
dictment nnist charge specifically, which of the duties imposed
has been neglected. Ibid, i*
76. When an indictment is founded on a private statute, the
6tatute must be set forth. Stater. Cobb, 1 Dev. and Bat., 115.
77. An indictment for biting off the ear, under the 2nd section of
the act of 1791, myst state the offence to have been doiie " on
5*
738 INDICTMENT.— 11.
purpose," as well as unlawfully. State v. Ormond, 1 Der.. and
Bat., 119. (See Eev. Code, ch. 34, sec. 47.)
78. In an indictment for a nuisance, if the facts charged
must, from their very nature, have created a nuisance to the
citizens in general, the words " to the common nuisance " may
be omitted. But if the facts charged show an offence inconven-
ient and troublesome, that man have extended its annoyance to
the community, or may have reached only certain individuals of
that community, those words become indispensable. Sfa^e v.
Baldwin, 1 Dev. and Bat., 195.
79. But an allegation in an indictment, that certain facts
charged were " to the common nuisance of all the good citizens
of the State," will not make it a good indictment for a connnon
nuisance, unless those facts be of such a nature as mat} justify
that conclusion, as one of law, as well as of fact. Ibid.
80. An indictment under the act of 1826, charging that the
defendant, on a particular day, and on divers other days, before
that day, sold and delivered spirits to certain slaves, whose
names were to the jurors unknown, is defective for uncertainty,
in embracing the transactions of divers days with divers per-
sons. And as the names of the slaves were not given, it is also
defective for not stating the owners of the slaves, or averring
that the owners were unknown,, if tlie fact were so. State v.
BhjtJie, 1 Dev. and Bat., 199. (See Rev. Code, ch. 34, sec. 87.)
81. It seems that a slave may be described by his name alone,
but it is better for the name of the owner to be given also. Ibid.
82. An indictment, which charges an indecent and scandalous
exposure of the naked person, " to public view in a public place,"
is sufficient, without charging the act to have been committed
ill the presence of one or more of the citizens of tlie State.
State V. Boper, 1 Dev. and Bat., 208.
83. It seems that signing the name of the foreman to the en-
dorsement of "a true bill" on a bill of indictment, though a
salutary practice, is not essential to its validity. But whether
this be so or not, a variance between the name of the foreman,
as appearing upon the record of his appointment, and his signa-
ture upon the bill, is immaterial, for his identity must necessarily
le known to the court, and tlie receiving and recording the bill
with his endorsement establishes it. State v. Calhooiu 1 Dev.
and Bat., 374.
84. Where an indictment charged, in effect, that the defend-
ant, a constable, falsely affirmed that a note for the payment of
money was a forthcoming bt)nd, and that, by means of such false-
hood, the defendant deceitfully prevailed on the prosecutor to
execute a pi-omissory note for the payment of a sum of money,.
it tvas Jield that the charge Avas too vague and uncertain, in not
stating how the result was produced by the falsehood practiced.
State V, Fitzgerald, 1 Dev. and Bat., 408.
INDICTI\IENT.— II. 739'
85. Legal terms in an indictment must be underetood in their
legal sense, unless, by other sufficient and plain words, another
meaning- is impressed upon them. Ihid.
86. It is a general rule in indictments that " the special man-
ner of the -whole fact ought to be set forth with such certainty,
that it mar judicially appear to the court, that the indictors have
not gone on insufficient premises." Ihid.
87. In an indictment under the act of 1830, against a white
man for playing cards with a slave, it is {sufficient to charge that
the defendant " unlawfully did play at a game of cards, " with-
out specifying the name of the particular game played with
the cards. State v. Bitclde, 2 Dev. and Bat., 29. (SeeKev. Code,
ch. 34, sec. 11(3.)
89. In an indictment on a statute, no allegation of unlawful-
ness, nor of being against the statute, nor any conclusion, will
make good the indictment, if it do not bring the fact prohibited
or commanded, in the doing or not doing of which the offence
consists, within the material words of the statute. Hence, if the
statute forbids the doing' of a particular act, without the authority
of either one of two things, the indictment must negative the
existence of both tliese thii^gs before it can be supported. Stcde
V. Loftin, 2 Dev. and Bat., 31.
89. An indictment for the murder of a slave may conclude at
the common law. State v. Samuel, 2 Dev. and Bat., 177.
90. An indictment,, for a forcible trespass to chattels, must
charge the trespass to have been committed in the presence of
the owner, and the taking to have been from his actual posses-
sion. State V. Love, 2 Dev. and Bat., 267.
91. All eri.mes, which are capital, are felonies; although that
term be not used in the statutes creating them. The oflice of
the Xevxn, felonice, is to describe the intent at the instant of doing
a criminal act, to apprize the court of the measure of the pun-
ishment, and to regulate the form of the trial. It has no syno-
nym, and is not dispensed with by the act of 1811, regulating
proceedings on indictments, for it is a matter of substance and
cannot be dispensed with. State v. Jesse, 2 Dev. and Bat., 297.
^"-^ee Rev. Code, ch. 35, sec. 14.)
92. An indictment, charging that the defendant did '• falsely
forge, and willingly assent to the falsely making," Occ, following
the words of the statute, is in accordance witli precedents and
is sufficient. Stide v. luon/an, 2 Dev., and Bat.,. 348.
93. An indictment, under the act of 1779, which charges the
seduction of a slave to be with an intent "to- sell, dispose of and
"ouvert to his own use," is suifici^it; for the felony created by
i; g,ct is sufficiently described, by charging the seduction to bo
with an intent "to sell," and the word', 'dispose of and apprc-
priate to his ownuse," do not extend the intention imputed, beyond
that of an intention to sell, and at most are only redundant. ^Vnd
740 INDICTMENT— II.
cliargiug the taldng to be "by violence, seduction or other
means," is not repugnant, as both violence and seduction may
have been used; but if it were double, it is aided by a verdict,
finding the taking to be "by seduction" only. The words,
*' other means," if used alone, would be too indefinite, but taken
in connection with the words "by violence and seduction," they
are merely superfluous. State v. Honey, 2 ])ev. and Bat., 390.
(See Kev. Code, ch. 34, sec. 10, by which the former law on the
subject is somewhat altered.)
94. The slave need not be charged to l)e of any value. Ibid,
95. A crime, which may be committed by the agency of seve-
ral means, is well described, if charged to be by the agency of
all, as a forgery may be charged to have been by false making,
and by procuring to be falsely made. Ihid.
96. An unnecessary averment, whi(;h renders an indictment
ungrammatical, does not vitiate it, although it should be care-
fully avoided. Ibid.
97. An indictment against a justice of the peace, for refusing
to issue his warrant for the arrest of a felon, must charge, either
that the felony was committed in his presence, or a tender of an
affidavit of its commission. It should also charge that the felon
was in the magistrate's county when the refusal occurred. State
V. Leigh, 3 Dev. and Bat., 127.
98. In an indictment for retailing spirituous liquors by the
small measure without a license, under the statute of 1825, it is
necessary to aver that the retailing was to some particular per-
son or persons, or to some person or persons to the jurors un-
known. /State V. Faucctt, 4 Dev. and Bat., 107. (Seeliev. Code,
ch. 34, sec. 94.) . , . n
99. In an indictment under the statute for abusmg and car-
nally knowing a female child under the age of ten years, which
charges the rape to be " in and upon one M. C, an infant under
ten years of age," &c., " and her, the said M. C, feloniously did
unlawfully and carnally know and abuse," &c., is sufhcient with-
out describing the hifa'nt as a "female child," nor is the addition
of "spinster," to the name of the infant, requisite in such an indict-
ment. State V. Terr?j, 4 Dev. and Bat., 152.
100. In indictments for offences aganist the persons orproper-
tv of individuals, no addition to the names of those individuals
is requisite. 1 hid.
101. An indictment for a conspiracy to destroy a warrant m
the name of the State, issued against a defendant on a criminal
charj^-e, and a recognizance for the appearance of the said de-
fendant to answer sucli charge, with the intent thereby to im-
pede the due administration of justice, nhonld positively aver that
such warrant did issue, and such a recognizance was acknowl-
edged, and should also set forth as much of the warrant and re-
cognizance as is necessary to show that they were valid, and,
INDICTMENT— 11. 741
therefore, that the destnictioii of theni ] night be prejudicial to the
admiuist ration of justice. Ileuce, if the \varraut and recogni-
zance be mentioned only by way of reference and recital, and it
be not slated witla any precision by whom tlie warrant was is-
sued, nor before whoui the recognizance was taken, and if the
substance of the Avarraut and recognizance be not set forth, so
tliat it may be seen whether they. Or either of them, liad legal
validity, tlie indictnjent will be insufficient. Biafe v. Enloc, 4
Dev. a] id r)at., olo.
102. An indictment for forging a bond, against one of the ob-
ligors therein, may allege the forgery of the wJiole instrument
by hi]n. Stale v. Gardner, 1 Ired., 27.
lUo. An indictment charging the forging of "a certain bond,"
instead of "a certain paper writing, purporting- to be a bond,"
is good. Ibid.
104. In an indictment for a riot, it is necessary to aver, and
on the trial to prove, a previous unlawful assembly; and, hence,
if the assembly were lawful, as upon a summons to assist an of-
ficer in the executioji of lawful process, the subsequent illegal
conduct, of the persons so assembled, will not make them rioters.
Statt V. Stulcup, 1 Ired., 30.
105. An indictment ought to be certain to every intent, and
without any intemlment to tlie contrary. But if the sense be
clear, and the charge sufliciently explicit to support itself, nice
objections ought not to be regarded. State v. Fore, 1 Ired., 378.
_ lO'J. It is generally pro]3er and necessary to describe, in an in-
dictment, an ofi'ence created by statute, in the words of the
statute. But there are a few exceptions to the rule. State v.
StiDiton, 1 Ired., 424.
107. In an indictment under the act "for showing forth in
evidence " a forged instrument, although " the showing forth "
must be proved co have been in a judicial proceeding, yet it is
not jieceissary to state in the indictment, in what suit or judicial
proceeding it was " shown forth." It is sufficient to state the
charge in the words of the act. Ibid. (See Eev. Code, ch. 34,
sec. oU.)
108. Where a person is called in an indictment "Deadenea,"
and it is proved her name was " Diadenea," the variance is im-
material. State V. Patterson, 2 Ired., 346.
lO'J. Where one is indicted for refusing to assist an officer in
securing a person whom he has arrested, it is not sufficient to
state in the indictment that this was an arrest by lawful authori-
ty; the authority to arrest must be set forth in the indictment.
State V. Siiaw, 3 Ired., 20.
110. In an indictment for murder, where the assault is alleged
to have Ijcen committed in soine one county of this state, and
the death to have occurred in another state, it is not necessary
that the indictment should conclude ayainst the form of the stat-
742 INDICTMENT— II.
ute; for, by the statute, no offence is newly created, nor raised
to a higher offence, nor an additional punishment annexed.
State V. Dimldey, 3 Ired., 11(5. (See Rev. Code, ch. 35, sec. 28.)
111. That part of the 'definition of murder, expressed in the
terms " the King's peace." refers not to the place of the assault
and death, but to the state and condition of the person slain, as
being or not being entitled to the protection of English laws;
for example, whether he be a subject, or an alien enemy, or
traitor in arms, or, in more ancient times, an infidel, or a person
guilty of proemunire. Ibid.
112. An indictment, which charged that A. B. did construct
and use a public gaming place in the town of H., in the county
of H., at which a certaiii game of chance was played, and that
the defendant at the said toAvn of H. did play at the said game,
" and did tJieii and there bet money with the said A. B., at and
upon said game, " is not good. It does not sufficiently charge
that the playing and betting by the defendant were at any pub-
lic gaming place; the words " tlien and there " having reference
only to the time and the venue, the county of H., and not to the
public place of gaming before mentioned. State v. Lanrjford, 3
Ired., 354
113. An indictment against an individual for permitting a
public bridge to become ruinous, which he was bound to repair,
must set forth liow he became subject to the duty of making re-
pairs. State V. KiiKj, 3 Ired., 411.
114. Where the count}" is mentioned in the caption of an in-
dictment, the last of the words "then and there," in the body of
the bill, will be understood as referring to that county. State v.
Bell, 3 Ired., 506.
115. A room in a large building, which room was separately
leased by the owner of the building to a merchant, who occupied
it as a store, it] having no dn^ect communication with the other
parts of the building, is properly laid, in an indictment for arson,
as ihe property of the lessee. State v. Sandy, 3 Ired., 570.
116. Where there is but one statute, an indictment, which con-
cludes against the form of the statutes, is bad, and, after convic-
tion, judgment will be arrested. Where there are more than one
statute, a conclusion against the form of the statute, is also bad.
Ihid. (The defect is now cured. See Rev. Code, ch. 35, sec. 20.)
117. Where a particular class of persons, other than the pub-
lic overseers of roads, are indicted for not keeping a road in or-
der, the indictment should contain an averment "that it was
their duty, and of right they ought to have kept the said road in
repair," otherwise judgment will be arrested. State v. Patton,
4 Ired., 16.
118. The omission of " North Carolina," in an indictment found
in a court of this state, where the name of the county is inserted
IXDICTMEXT— II. 743
in the margin or body of the indictment, is not a cause for arrest-
ing the judgment. State v. Lane, 4 Ired., 113.
il9. Where an indictment sets forth the time of commission of
murder in these words, "on the third day of August, eighteen hun-
dred and forty-three," without saying '• the year of our Lord," or
even using the word " year," it was held that, although this de-
fect wouhl have be^sn fatal at common law, it was cured by the
act of 1811. Ihid. (See Eev. Code, ch. 35, sec. 14.)
120. By the act of 1842, ch. 10, a part of the county of Burke,
and a part of the county of Rutherford, were constituted a new
county by the name of McDowell ; and, by a supplemental act,
jurisdiction of all criminal offences, committed in that part of
McDowell taken from Burke, was given to the superior court of
of Burke. But an ofience committed in ]\IcDo^vell county
ought not to 1)e alleged to have been committed in Burke; for al-
though the jurisdiction of the offence was given to the superior
court of Burke, its locality must be truly averred. State v. Fish,
4 Ired., 219.
121. Where an indictment for a rape charged that the defen-
dant " Avith force and arms, &c., in and upon one Mary Ann Tay-
lor, itc, violently and feloniously did make an assault, and her,
the said ]\lary Ann Taylor, then and there violently, and against
her will feloniously, did ravish and carnally know," is suliicient
as the court must see with certainty that ]\Iary Ann Taylor was
a female. State v. Farmer, 4 Ired., 224.
122. It is not necessary, in an indictment for a rape, to state
that the female ravished was of the age of ten years. But if she
be under the age of ten years, then that fact should be averred,
because abusing such a female is made felony by the statute,
whether she assented to the act or not. Ihid.
123. Where an indictment charges both a selling hy a slave,
and a selling to a slave, in the same count, advantage cannot be
taken of this, though not strictly proper, by motion in arrest of
judgment ; for, after trial at least, such a defect in form is cured
by the statute of amendment. State v. Hart, 4 Ired., 246. (See
Rev. Code, ch. 35, sec. 14.)
124. In the 2d section of the act of 1819, making it indictable
to pass a counterfeit bank note, "purporting to be a bill or note
issued by order -of the president and directors," &c., the legisla-
ture did not use the word "purporting" in its strict technical
sense, as meaning that these words should appear on the face of
the counterfeit bill or note, but in its popular signification to
denote a bill or note, presumed to have been issued by order of
the president and directors of a bank. An indictment, therefore,
which sets out the purport of the counterfeit note, as it really
appears on its face, is sufficient. Stat3 v. Harris, b Ired., 287.
(See Rev. Code, ch. 34, sec. 61.)
JL2a» Aji ijjdictment against a free person of color, -whicJa
744 INDICTiAIENT— II.
charges that he did " buy of, traffic with and receive from a-
certain negro slave, &c., one peck of corn," &c., is good, although
the act, forbidding the dealing of free persons of color and slaves,
only uses the words, "if he shall trade with any slave, either by
buying of or selling to him," &c. The other words used in the
indictment are mere surplusage. State v. Cozens, 6 Ired., 82.
12(x The words vi ct armis, in an indictment for murder, are
now superfluous, ami more especially in an indictment against
an accessory, as his oftcnce tends only to a breach of the peace,
and is not, of itself, an actual breach of it. State v. Duncan, 6
Ired., 236.
127. An indictment for a libel must set forth matter on its
face libellous, in which case the court is to judge whether it be
so or not; or it must aver that the matter charged, though not
on its lace libellous, was intended in fact to be so, and then the
question is to be submitted to a jury. jState v. White, 6 Ired., 418.
128. The purpose of setting forth the name of the person, on
whom an oflence has been committed, is to identify the particu-
lar fact or transaction, on which the indictment is founded, so
that the accused may have the benefit of an acquittal or convic-
tion, if accused a second time. The name is generally required
as the best mode of describing the person ; but he may be de-
scribed otherwise, as by his calling, or the like, if he be identi-
fied thereby as the individual, and distinguished from all others,
and if the name be not known, that fact may be stated as an
excuse for omitting it altogether. State v. Angel, 7 Ired,, 27,
129. An indictment, which charges that A, B and C, with force
and arms, &g,, unlawfully, riotously and routously, did assemble
together to disturb the peace of the State, and did then and there,
being so assembled and gathered together, make a great noise
and disturbance in and near the dwelling house of one W. S.,
proclaiming that the said W. S. and his wife were persons of
color, ofiering them for sale at auction, and calling them vulgar
and opprobious names, all of which was done in a loud voice, so
that the same could be heard at a great distance, to the great
damage and terror of the said W. S. and his wife, and to the
common nuisance," &c., does not charge any criminal offence,
inasmuch as it does not state that the said W. S., or his wife,
was in the house at the time. State v. Hatheock, 7 Ired., 52.
130. Every indictment is a compound of law and fact, and
must be so drawn, that the court can, upon its inspection, be
able to perceive the alleged crime. Ibid.
131. An indictment, Avhich charges that the defendant did
keep a disorderly house, and "certain persons, as well free as
slaves, to frecpient and come together, then, and on the said
other days and times, there unlawfully and wilfully did cause
and procure, &c., to be and remain, drinking, tippling and mis-
Ixihaving' themselves," &,c., is suflScieiLt to charge a criminal
INDICTxAIENT— n. 745^
©fience, M^itliout setting forth the particulars, as the names of the
parties, &g., though these particulars may be given in evidence'
on the trial. State v. Fattersooi, 7 IrecL, 70.
132. An indictment for a highway robbery may charge either
that the robbery Avas committed in the highway, or that it was
committed near the highway. State v. Anthony, 7 Ired., 234.
133. But if the indictment charge that the robbery was i7i
the highway, the State cannot give in evidence that it was near
the highway. State v. Cotvan, 7 Ired., 239. (See Eev. Code,
ch. 3-1, sec. 2.)
134. An indictment for a highway robbery, which charges
that the property Avas taken from the person, and against the
will, of the owner, feloniously and violently, is suflficieut. Ihid.
135 A Avharf, simply as such and not being part of a street,
is not a public liighA^-ay, upon which a highway robbery can be
committed. Ibid.
13(J. In an indictment for altering* the mark of a cattle beast,
it is not necessary to set forth the original mark, nor in what
manner the alteration Avas made. State v. O'Neal, 7 Ired., 257.
137. An indictment for trading with a slaA^e in the day time,
by selling him spirituous liquors, must negative an order of the
owner or manager, as well as a deliveiy for the OAvner. But an
indictment for such selling in the night time need not contain
such negation, because thfi offence is complete, whether the
slave had a written permission from his owner or not. StcUe v.
3mer, 7 Ired., 275.
138. An indictment for murder, which charges the homicide
to have been committed on the "tAveflth" day of August, in-
stead of the "twelfth" day of that month, is good; if not at
common laAv, at least under the statute, Eev. Stat., ch. 35, sec.
12. State \. Shepherd, 8 Ired., 195. (See Rev. Code, ch. 35,
sec. 14.)
139. In an indictment for murder, if the time stated be ante-
rior to the indictment, it is material and only material in one
respect, and that is, that the day of the death, as laid, is within
a year and a day of the wounding; and if that appear from the
stating of the month, the day of the month is immaterial ; ac-
cording at least to the construction of the act curing defects in
indictments. Ibid.
14(>. An indictment, which charges that "A. B., late, &c., at
&c., with force and arms, &c., did publicly curse and swear, and
take the name of Almighty God in vain, for a long time, to Avit :
for the space of tAvo hours, to the common nuisance of all the
citizens of the State," &c., cannot be supported. For, to render
the offence of profane swearing indictable, the acts must be so
repeated and so public, as to become an annoyance and incon-
venience to the public for then they constitute a public nuis-
ance. State V. Jones, 9 Ired., 38.
746 INDICTMENT— 11.
141. It is not sufficient to the conviction of a defendant, on
such an indictment as the above, that the State should show
that the defendant had committed a nuisance, unless it be pro-
perly charged as such ; nor will it be sufficient to charge that
the facts were done "to the common nuisance of all the good
citizens of the State," unless the facts so charged amount in
law to a nuisance. Ihicl.
142. In an indictment for selling to a slave in the night time,
it is not necessary to negative an order of the owner or mana-
ger, as the offence was committed, and so alleged to be, in the
night time. State v. Bobbins, 9 Ired., 356.
143. In such an indictment, the slave is sufficiently identified
by his name; and a further description by giving the name of
his owner is unnecessary. Ibid.
144. Although it is not proper, in an indictment, to lay an
offence as committed against "the act of assembly," itiste;id of
saying against "the statute," yet the informality is cured by
our act. State v. Tribatt, 10 Ired., 151.
145. Where, in an indictment for cheating by a false token in
relation to the conveyance of land, the charge intended to be
made is, that the defendant intended to cheat the plaintiff out
of twenty acres of land, the excess in quantity over thirty-five
acres, the indictment should expressly aver that there was, in
fact, such an excess of twenty acres. State v. Burroivs, 11 Ired.,
477.
146. In an indictment for bigamy, the place where the first
marriage was had is not material; and it is sufficient to set forth
that there was a prior marriage. State v. Bray, 13 Ired., 289.
147. An indictment, for receiving stolen goods, must aver from
whom the goods were rece ved, so as to show that he received
them from the principal felon ; for if he received them from any
other person, the statute will not apply. State v. Ives, 13 Ired ,
338. (See Eev. Code, ch. 34, sec. 56.)
148. Where a genuine instrument is altered, so as to give it a
different effect, the forgery may be specially alleged, as consti-
tuted by the alterations, or the forgery of the entire instrument
may be charged. State v. Weaver, 13 Ired., 491.
149. An indictment for the forgery of an instrument, profess-
ing to set it out according to its tenor, should give the names, in
describing the instrument, spelt as they appear spelt m the origi-
nal. Ibid.
150. The wearing, or carrying about the person, or keeping in
his house, by a free negro, of any one of the articles prohibited
by the act of 1840, ch. 40, as a rifle, musket, bowie knife, &.C., is
a distinct offence, and should be so charged in the bill of indict-
ment. But where the indictment charged, in the same count,
the carrying of a " musket, rifle and shot gun," proof of the
.carrying of either one of the articles is sufficient to justify a con-
INDICTMENT— II. 747
taction; and the objection to the indictment cannot 'be taken ad-
vantage of, either at the trial, or upon a motion in arrest of
judgment. State v. LocUear, Busb. '205. (See Eev. Code, ch.
107, sec. 66.)
151. An indictment charging a raih'oad company, as the owner
of a pubHc ferry, for not keepnig up the same, must set forth
how the duty of keeping up the ferry and transporting passen-
gers became imposed by the charter of the comj^any. State v.
Wihiu)u/fon and Manchester Bailroad Comjxiny., Busb. 234.
152. \Yhere a statute defines an oftcnce, makes it indictable
and ]:>rescribes the punishment, an indictment for it is wholly
founded on this statute, although it contains a reference to a
former statute, giving a penalty to a common informer for the
same act. Therefore, if the indictment concludes against the
form of the " statutes," it is fatally defective. State v. Abernathy,
Busb., 428. (Such a defect is not now fatal, see Eev. Code, ch.
35, sec. 20.)
153. In an indictment against a justice, for corruption in an
act done in virtue of his office, it is not sufficient to charge that
the act was done corruptly; the facts must be set out in which
the corruption consists. State v. Zachary, Busb., 432.
154. An indictment for an affray, which siraplv charges that
the defendants " did make an affray," without stating in what
manner, or by what acts, is defective. State v. IVoody, 2 Jones,
335.
155. In a charge against a person of color, for an assault with
an intent to commit a rape, it is not necessary to allege in the
indictment tliat the accused was a male, nor that the white fe-
male assaulted was a female of the human species. State v. Tom,
2 Jones, 414.
156. An indictment, charging that an assault was made with
an "intention" to ravish, &c., instead of "intent," is good, at
least under the act of 1^11. Ibid. (See Eev. Code, ch. 35,
sec. 14.)
157. Where, in an indictment for murder, the word " bloAv "
was used instead of " wound,', but there w^ere words in the con-
text showing that a wound was given, and what kind of a woimd
it was; it was Mc7 (Nash, C. J. dissenting,) that it was an in-
formality in the indictment, which was cured by the act of 1811.
State V. Noblett, 2 Jones, 418.
*' 158. An indictment against the commissioners of a town, for
failing to perform their duty in keeping the streets of the town
in repair, for a certain space of time, nuist aver the tenure and
duration of their office, so as to show that they were commis-
sioners when the neglect to perform their duty occurred. State
V. Commifisioners of Raleigh., 3 Jones, 3D'J.
159. Where the comimissioners of a town are authorized to
raise money by taxation, for repairing the streets, and tp expend
748 INDICTMENT— II-III.
it in a particular way, viz : by letting out the work to the lowest
undertaker, it is not sufficient to charge generally, that they re-
fused and neglected to raise and expend the money in repairing
the streets. Ibid.
IGO. In an indictment for cheating by means of a false token,
to wit, " a counterfeit quarter of a dollar," it is not material to
aver of what currency the counterfeit quarter of a dollar was ;
nor to aver that the counterfeit was made like the one alleged to
be imitated, the word " counterfeit " being a sufficient allegation
of that fact. 8tate v. Boon., 4 Jones, 463.
161. In such an indictment, it is not necessary to aver that
the counterfeit money was passed; nor the value of the thing
obtained by means of the false token, if such thing be recog-
nized as proim'ty; nor that the thing obtained was the property
of the person from whom it Avas alleged to have been obtained;
for if the omission of the latter would be fatal at common law,
it is cured by statute, liev. Code, ch. 35, sec. 14. Ibid.
162. Under the Revised Code, ch. 34, sec. 88, in an indictment
or warrant for the penalty, it is sufficient to aver a sale ot spir-
ituous liquor to a slave, Avithout the permission in writing of the
person having the management of such slave, without adding
that it was not for the owner or manager. Pope v. Luther, 6
Jones, 413.
163. In an indictment for murder, where the facts are so, it
may be charged it was done " in some way and manner, and by
some means, instruments and weapons to the jurors unkuown."
State V. WiUiar]s, 7 Jones, 446.
164. An indictment, upon the 29th section of the 107th chap-
ter of the Rev. Code, is sufficient, if it aver that the defendant
did "permit tlie said slave Peggy to keep house to herself as a
free person," and, in the second count, " did connive at said ne-
gro slave keeping house to herself as a free person." State v.
BucJcwortJi, 1 Winst., 243.
See (Act of assembly, 8.) (Justices of the Peace — Of the re-
sponsibility of justices, 2.) (Malicious mischief, 3-6.) (Mills —
Indictments against mill owners Itn- keeping false toll dishes, 2
-3.) (Peijury, 3-5-7-8-9-10-14-15-17-18-19-20-21-22-23.)
in. OF THE TRIAL, VERDICT AND JUDGMENT,
1. On an indictment for burglary and felonious stealing, &c.,
the jury may find the prisoner guilty of the larceny, though not
guilty of the burglary. State v. Grisham, 1 Hay., 12, (17.)
2. i\.n indictment contained three counts, of the first of which
the court had no jurisdiction; and the defendant Avas, therefore,
not permitted by the court to submit on that only, as his con-
sent could not give it jurisdiction. The submission must be
upon all the counts, unless the solicitor for the State enter a
IXDICTMEXT— III. 74<?
not pros, as to tliosc upon -u'lnch there is no submission, /State
V. Boherts, 1 Hay., 176, (201.)
3. Upon assaults with intent to kill, the courts are not bound*
^o imprison upon a submission or conviction. They may, at
heir discretion, inflict a fine only. Ibid.
4. The proper process to compel pajinent of a fine is a capia-
tur p-o Jirie, which is issued when the party is not in court at
the time when the fine is laid; but when he is in court, and is
ordered into custody, it is improper to discharge him and order
a/, fa. to issue. State v. Johnson, 1 Hay., 293, (338.)
5. After conviction, on an indictment against a sheriff for a
false return, the court will not permit the State to show that he
has made false returns on many other writs, to aggravate the fine.
Ibid.
6. In an indictment for a riot, if one of several be convicted,
the others not havnig been taken, he may be punished, because,
though the others be afterwards acquitted, he is estopped by the
verdict to deny his guilt. /State v. PugJi, 2 Hay., 55, (218.)
7. The act of 1791, relative to the kihing of slaves, is not cer-
tain enougli to warrant the court in passing sentence of death,
upon a prisoner convicted under it. /State v. Boon, Tay., 24G,
(103.) (The act has been amended. See Eev. Code, cli. 34,
sec. 9.)
8. In an indictment for mayhem, if no issue be joined between
the State and the defendant, the judgment will be arrested.
Stater. Fort, 1 Car. L. E., 510, (122.)
9. AA^iei-e an indictment contained two counts, one for aiding
and abetting in a mayhem, and another for assault and battery,
and the defendant was acquitted upon the first, but convicted
upon the second, held that no judgment could be rendered. Stcde
V. Bridges, 1 JNlurph., 134.
10. Females are entitled to benefit of clergy. Slate v. Groy^
] Murph., 147. (Benefit of clergy is now abolished. See liev.
Code, ch. 34, sec. 22.)
11. Judgment shall not be arrested because the venire, returned
to the superior court, consisted of forty, instead of thirty-six, ju-
rors; nor because one of the jin'ors was on the coroner's inquest;
nor because it does not appear, on the face of the proceedings,
that the bill was found upon oath, nor that any of the witnesses
w^ere sworn and sent to the grand jury. State v, McEntire, 2
Car. L. E., 287, (267.)
12. "Where, in an indictment for extortion, the jury foimd that
the defendfUit took more than his .legal fees, but did not take
them corruptly, the verdict is in effect one of acquittal. State
V. Bright, 2 Car. L. E., 634, (437.)
13. If an indictment for forgery contain a charge of the crime
at common law, judgment may be given on it, though the prisr
750 INMCTMENT— III.
oner was indicted nnder the statute. 8iate v. WaR'er, N. C.
Term E., 229, (GGl.)
14. It is the province of the judge, in a case of homicide, to
explain the h\w to the jury, leaving to them the exclusive de-
cision as to the truth or falsehood of the facts given in evidence.
Hence, it is not improper for him to charge the jur_y, that "the
prisoner was guilty of murder, or guilty of no offence at all —
that it was not a manslaughter case, " if the facts deposed to, if
believed y establish a case of m^urder. State v. Walker, N. C.
Term K, 230, ((iG2.)
15. When, from the finding of the jury, the party may be in-
nocentj he will not be presumed guilty. Hence, if a man be
indicted for perjury, in swearing that he did not executes certain
deed, and the jury find specially that he is guilty of perjury in
denying Ms signature, the judgment must be arrested ; for a deed
may be executed without actual signing. /State v. Aver a, Is. C.
Term R., 237, (G69.)
16. Where, upon an indictment for felony andj horse stealing,
the jury returned for their verdict, "that the prisoner was not
guilty of the felony and horse stealing, but guilty of a trespass,"
and the court desired them to reconsider their verdict, and say
" guilty or not guilty, and no more,'' and the jury, thereupon,
retired and returned a verdict of " guilty " generally, the su-
preme court decided that the first finding of the jury should be
ordered to be recorded, and the prisoner discharged; the prison-
er being entitled to such an order whenever he is, either in
terms or in effect, acquitted by the jury. State v. Arrington, 3
Murph., 571.
17. When a jury returns an insensible or informal verdict, or
one that is not responsive to the issues submitted, they may be
directed by the court to reconsider it, but in no other case. Ibid.
18. Under the act of 181G, corporal punishment and fiue can-
not both be imposed on a person convicted of felony Avithin
clergy. And, under the same act, wliipping must be restricted
to infamous crimes, and the true construction is to refer the fine
to manslaughter, and whipping to larceny, and the like. State
V. Keainey, 1 Hawks., 53. (The benefit of clergy is now abol-
ished, and manslaughter is punished by branding or a fine, with
imprisonment, not exceeding twelve months, superadded to either.
See Eev. Code, ch. 34, sees. 22 and 24.)
19. A caption forms no part of the indictment, and therefore
it is no ground for aiTcsting the judgment, that the indictment
does not show in its caption that it was taken in some court in
North Carolina. State v. Brickell, 1 Hawks., 354.
20. In Ciipital cases, there is no need of a formal joining of
issue preparatory to trial ; the prisoner's plea, and the sin i iter,
being ore terms. Stcde v. Lamon, 3 Hawks, 175.
21. When a prisoner in a capital case has once pleaded "not
INDIcniEXT— Iir. 751
guilty," he cannot, as a matter of right, withdraw it. and plead
ill abatement, though the court may, in its discretion, permit
him to do so. Ihid.
'2-2. After a conviction for murder, it is not a ground for arrest
of judgment, that one ot the grand jury, which found the bill,
was one of the coroner's inquest. Ihid. "
23. It is no ground for an arrest of the judgment, that the
record ♦states merely that the "grand jury was duly drawn,
swornand charged," without saying that they were drawn frorn
the original panel, for it is not necessary that the record should
set forth the formula by which the grand jury is constituted.
Ibid.
24. When a nol pros, is entered to an indictment in the county
court, the clefendant therein becomes amenable on another in-
dictment, in any court having jurisdiction of the offence ; other
wise, a nol 'pros, would amount to an acquittal. Slate v. McNeil
3 Hawks, 183. '
25. The attorney general has a discretionary power to enter a
nolle prosequi, for the proper exercise of which he is responsible
to the pubHc; and the court will not interfere, unless the power
be oppressively used. After entering a nol pros, at the trial, he
may issue a capias upon the same indictment, returnable to the
next term of the court. State v. Thompson, 3 Hawks, (U3.
2_(). Corporal punishment and imprisonment cannot both be
inflicted on a person found guilty of manslaughter. Stcde v.
Yecdes, 4 Hawks, 187. {Yov the punishment of manslaughter
for the first offence, see lie v. Code, ch. 34, sec. 24.)
27. If an indictment for an affray charge the parties with
"mutually assaulting and fighting with each other," they may
be acc^uitted of the affray, and one only of them be found guilty
of an assault and battery upon the' other. State v. Allen, 4
Hawks, 35().
28. When, on the removal of a cause, the transcript does not
st'ite either the appointment of a foreman of the grand jury, or
a motion for the removal, they may be inferred from other 'en-
tries on the record. State v. ^Weir, 1 Dev. 363.
29. A jury, when charged with the trial of a capital offence,
'•annot be discharged without returning a verdict, unless for
some cause which human sagacity can neither foresee nor pre-
vent; therefore, where a jury were charged with the trial of a
prisoner for murder, and, before they returned their verdict, the
term of the court expired, and the jury separated, it teas' held
that the prisoner could not be tried again. State v. Spier, 1 Dev
491. (The term is now continued until such a trial is ended'
see Rev. Code, ch. 31, sec. 16.) '
30. The provision of the constitution, "that no person shall be
subject, for the same offence, to be twice put in jeopardy of life or
limb," not only forbids a second trial for the same offence after
752 INDICTMENT— III.
an acquittal, but also where the jury have been once charged
upon a perfect indictment, and were not prevented from return-
ing a verdict by the act of God, or at the request of the prisoner.
Ihid.
31. Upon a conviction of murder, the proper and formal entry
oi the verdict is, " guilty of tlie felony and murder in manner and
form as he stands charged," &c ; but Avhere the jury thus respon-
ded, and the entry was " guilty in maner and form as ch.;^rged,"
the finding was held sufficient, and the prisoner not entitled io
his clergy. State v. Upton, 1 Dev., 513.
32. Upon the principle that Ijelief is more readily yielded to a
probable, than to an improbable proposition, less strong and ir-
refragable proof will justify a conviction for a misdemeanor, than
for a felony; but in both cases there should not be a reasonable
doubt of the guilt of the accused. State v. Cochran,, 2 Dev., G3.
33. The manner, in which inferior courts exercise their juris-
diction, must appear upon the record of their proceedings, and
no intendment is made to support their acts; but superior courts
are supposed to do every thing in the prescribed manner and
form. Therefore, where it appeared on the record of the superi^
< .r court, that a grand jury was empannelled, but it was not sta-
ted that they were s •■■orn, it was Iteld to be sulilcient. State v.
Kimbrough, 2 Dev., 431.
34. On the trial of a capital case, it is a matter of discretion
with the court to adjourn in the evening over to the next morn-
ing, keeping the jury together, and this without the prisoner's
consent. I hid.
35. In the record of an indictment, it is proper to state it as
taken " at a superior court of law," and not " at a superior court
of law and equity." Ihid.
3(1 In a record, which states that " at a superior court begun
and held, &c., present the Hon. A B, judge," it will be intended,
that the judge was present in his official character. J bid.
37. In courts of supreme original criminal jurisdiction, every
thing, as to the method of proceeding, is presimied and taken to
be right, tmless the contrary appears. Slate v. Seaborn, 4 Dev.,
305.
38. Upon a conviction for arson, the convict is ousted of his
clergy. Ibid.
d)i). Upon an indictment under the act of 1825, " for carrying,
conveying and concealing a slave on board a vessel, with the in-
tent, and for the purpose of conveying the slave beyond the lim-
its of the State, and -enabling him to effect his escape out of the
State," a verdict finding the prisoner guilty of the felony of car-
rying, conveying and cojicealing, as charged in tlie bill of in-
dictment, is defective and a venire de noco must be awarded.
State V. Edmund, 4 Dev. 340. (See liev. Code, ch. 34, sec. 11.)
IXDICTI\1EXT.— ir. 753
40. A freeman of color is a citizen of the State, and a slave a
person within the meaning- of the act of 1825. Ibid.
41. .Misconduct of a juror, in a capital case, as a separation
from his fellows, or drinking wdthout the permission of the
court, before delivering the verdict, was held to be a reason for
applying to the discretion of the judge, in the court below, for
a ncAv trial, but not to render the verdict a nullity, and a venire
de novo proper. State v. Miller, 1 Dev. and Bat., 500.
42. Platte/ alleged as a ground for a venire de novo should be
stated on the record, and not brought forward in pais, as matter
for a new trial. Ibid.
43. It is no cause for vacating the verdict, or arresting the
judgment, in a capital case, for one of the jurors in rendering the
verdict, to declare that, being forced by the laws of his country
he was bound to say that the defendant was guilty. State v
Swinke, 2 Dev. and Bat. d. o . - •
44. _ A jury charged in a capital case, cannot be discharged at
the discretion of the court, before returning a verdict; they can-
not be discharged without the prisoner's consent, but for evi-
dent, urgent, overruling necessity, arising h-om some matter oc-
currnig during the trial, which was beyond human foresight
and control; and, generally speaking, saich necessity must^be
set forth in the record. State v. Ephmim, 2 Dev. and Bat. 162.
45. Forgery being a misdemeanor only, the defendant is not
entitled to thirty-five peremptory challenges, under the act of
1777, unless the offence is charged to be a second one. Stoie v
Morcion, 2 Dev. and Bat. 348. (See Eev. Code, ch. 35, sec 32,
by w-hich the number of peremptory challenges in a capital
trial is reduced to twenty-three.)
46. Where there are several counts in an indictment, the State
may be ruled to elect upon which the trial shall be had; but this
IS done only to prevent injury to the accused, where the counts
contain charges of distinct offences, but never where thev are
only variations in the mode of charging the same offence ''State
v. Haney, 2 Dev. and Bat., 300.
47. The act of 1831, authorizing the hiring out of a free person
of color, convicted of a criminal offence, for the payment of the
fine imposed, where he is unable to pay the same, does not ex-
tend to one who submits to the court. State v. Oxendine 2 Dev
and Bat.,_435. (See Ptev. Code, ch. 107, sec. 75.)
48. It is competent for the court, after a motion in arrest of
judgment, to alter the record during the same term, by insertino-
in, or striking from, the minutes, whatever may be neceS
sary to make them, when enrolled, speak the truth; and if, by
such alteration, the grounds for a motion in arrest be removed
upon an appeal nothing can be looked to but the record in its
complete state. State v. Ftoherts, 2 Dev. and Bat., 540.
40. A motion in arrest of judgment cannot be sustained on
6*
754 INDICTMENT.— III.
the ground that it does not appear from the endorsement on the
bill of indictment, that the witnesses were sworn before they were
sent to the grand jmy ; for the judgment can be arrested only
for matter appearing, or for the omission of some matter which
ought to appear, on the record, and those endorsements form no
part of the bill. Ihitl.
50. A person convicted of manslaughter may be burned in the
hand, and also imprisoned for any time not exceeding one year.
The statutes of 4 Hen. 7, ch. 13 and 18 Eliz., ch. ^, not being
altered in this respect by the act of 1816. State v. Henderson^ 2
Dev. and Bat., 543. (See Rev. Code, ch. 34, sees. 24 and 25.)
51. Where the record set forth an indictment for murder, the
answer of the prisoner to the enquiry how he would acquit him-
self, the reply of the attorney general, the order for a jury to
come, and then proceeded " and afterwards in the said case.
State V. T. H. C, indictment, murder, the following jury being
sworn and empanneled, to wit, &c., who say that the prisoner,
T. H. C, is guilty of the felony and murder in manner and form
as charged in the bill of indictment," it loas heldiXvAt the record
showed, if not in express terms, yet by nece- sary implication and
requisite certainty, that the jury was sworn to try the truth of
the matters charged in the indictment. State v. Christmas, 4
Dev, and Bat, 410.
52. In capital cases, though it is usual to make up an issue
with the prisoner on his plea of not guilty, yet it is not necessa-
ry to do so. The issue is immaterial, for the trial is in the nature
of an inquisition, in which the jury is charged to enquire of the
truth of the accusation contained in the indrictment. Ibid.
53. It would probably not be error, if the record were to set
forth the verdict as a finding on the issue joined between the
State and the prisoner, where the issue is joined on the truth of
the indictment, but such is not the regular form of stating it.
Ibid.
54. It is enough that the record, in an indictment for murder,
be certain to a certain intent in general,. It is not necessary that
it should be certain to a certain intent in every particidar, so as
absolutely to exclude every possible conclusion, all arguments,
presumption or inference against it. IJ>id.
55. The officer prosecuting for the State has a discretionary
power to enter a nol. i^os., for the ])roper exercise of which lie
is responsible, though the court would certainly interfere, if he
attempted to exercise this power oppressively. State v. Buch-
anan, 1 Ired., 5i).
56. When a defendant is acquitted upon one count in an in-
dictment, and convicted on another, if, upon an appeal, a venire
de novo be ordered, it must be to retry the whole case, ^tate v.
'Stanton, 1 Ired,, 424.
57. Where an indictment charges a rescue, and also an assault
INDICTMENT.— III. 755
md battery, and the defendant is convicted generally, if the
averments, as to the rescue, are uncertain and bad, these may be
rejected as uncertain and immaterial, and the coin-t may proceed
to pass judgment upon the verdict, as for an assault and battery.
State V. dlorrhon, 2 Ired.^ 9.
58. Where the record uses the past tense, as that in the award
of a venire facias the sheriff ims commanded, or the indictment
tvas found, &c., this, though not strictly regular, has been for so
long a time the practice in this state, that the court will not pro-
nounce it a fatal error. State v. Martin, 2 Ired., 101.
59. It is no ground foi- arresting the judgment after a convic-
tion on an indictment, that it appears from the record that the
grand jury, who found tlie bill, consisted of only fifteen jurors.
Staie V. Diivi.% 2 Ired., 153.
GO. By the common law, a grand jnry may consist of any num-
ber between twelve and twenty-three. Our statute upon the
-uljjcct of a grand jury is only directory to the court, and does
not make void a bill or presentment foinid, by a grand jury con-
sisting of the common law number. Ihid.
61. Tlie time, at which a sentence in a criminal case shall be
carried into execution, forms no part of the judgment of the
court. Therefore, where a defendant, who had been convicted
of an assault, was sentenced to be imprisoned for two calendar
months, " from and after the first day of November next," and
did not go into prison according to the sentence, and, at a sub-
sequent court, it was directed that the sentence for two months'
imprisonment should be immediately executed, it icas held that
the coTU't had power to make such order. State v. Cockerliam,
2 Ired., 204
()2. When, upon a conviction for a clergeable offence, the de-
fendant prays the benefit of clergy, and the officer for the State
objects upon the ground that the prisoner has before had it al-
lowed him, he must present the objection in the form of a coun-
ter plea in writing. State v. Carroll, 2 Ired., 257. (The benefit
<A' clergy is now abolished, and the case of what Were formerly
v-lergeable felonies otherwise provided for. Sec Eev. Code, ch.
ol, sec. 22 and following.)
(53. Defendants in an indictment liave a right to plead seve-
rally, not guilty, and a general plea of not guilty by all the de-
fendants is, in law, a several plea. But whether the trial shall
be , separate or not, is a matter of sound dist-retion, to be ex-
ercised by the court under all the circumstances of the case.
Stale V. Smith, 2 Ired., 402.
64. Where the jury, in a special verdict, do not say that they
find in one Avay or the other, according as the opinion of the
court may be upon the law, the verdict is imperfect. And where
a special verdict is imperfect or bad, so that no judgment can be
756 INDICTMENT.— III.
given thereon, the proper course is to order a venire de novo.
State V. Wallace, 3 Ired., 195.
65. To a tender of an issue to the countiy, by a prisoner, in the
plea of "not guilty," in a capital case, the atttorney general always
replies ore tcnus, and the record need not show it. State v. Car-
roll, 5 Ired., 139. ^
66. Where a prisoner prays the l^enefit of his clergy, a coun-
ter plea may be filed in the name of the prosecutor, " for and in
behalf of the State," it the same be adopted by the attorney gen-
eral, though it should properly be in his, the attorney general's,
name. Ibid.
67. If the prisoner contends that the offence, for which he now
prays his clergy, Avas committed before his allowance of clergy
for a former offence, he must avail himself of that defence by a
plea of pardon, when brought up tor judgment, or by a special
replication to the counter plea. Ibid. (Benefit of clergy now
abolished, and also the species of pardon here referred to. See
Rev. Code, ch. 34, sec. 22 and 23.)
68. Where, in a capital case, one of the jury, on their coming
into court and being polled, said "that when he first went out
he was not for finding the prisoner guilty, but that a majority of
the jury was against him, and that he then agreed to the ver-
dict of guilty as delivered in l)y the foreman," and, being
again asked, "What is your verdict now?" he replied, " 1 find
tiie prisoner guilty," it rvas held that there was no objection to
tlie verdict. State v. Godicin, 5 Ired., 401.
69. Although it is more correct, in maldug up the record of a
criminal trial, that the presence of the prisoner should be ex-
pressly affirmed, yet it is sufficient if it appear b}^ a necessary or
reasonable implication ; as where it is stated that the prisoner,
who had been before committed to the custody of the sheriff,
was ordered to be brought to the bar, and immediately thereafter
he is called l\y the jury in giving, and by the clerk in record-
ing, the verdict, the prisoner at the bar, and next the court, in
passing sentence, adjudged that the prisoner be tol-eji hack to the
prison. State v. Craton, 6 Ired., 164.
70. After a free person of color has been convicted on an in-
dictment, under the act, for marrying a slave before the act of
1845, it is too late for him to apply to the court to discharge
him, on the ground that the master of the slave had given his
consent to the marriage. The defence should have been made
on the trial. State \CBolarid, 6 Ired., 241. (See Eev. Code, ch.
107, sec. 61.)
71. Where the jury find a general verdict of "guilty," the
court must either pronounce its sentence upon the verdict or
grant a new trial. It cannot set aside the verdict, and direct a
judgment of acquittal to be entered for the defendant. State v.
'Curtis, 6 Ired., 247.
INDIGT^IENT.— III. 757
72. Where the jury find a verdict subject to the opinion of
the court on a point reserved, the court cannot grant a judg-
ment against the verdict, unless the jury say " they find such
and such facts, and if, upon them, the court thinks the law is
with the defendant, they find him not guilty, if otherwise,
guilty," or words in substance to that effect. Ihid.
73. Where, on the trial of an indictment, the jury find a ver-
dict of "guilty" generally, and that appears on the record, the
supreme court cannot consider it as a special verdict, subject to
the opinion of the court, notwithstanding the statement of the
case by the judge so reports it. State v. Cox, 6 Ired,, 440.
74. Where, on the trial of an indictment for murder, the pris-
oner's counsel objected, that the name of the deceased as men-
tioned in the indictment was not his true name, that was a fact
to be tried by the jury. State y. Angel, 7 Ired., 27.
75. A special verdict is, in itself, a verdict of guilty or not
guilty, as the facts found in it do or do not constitute in law the
offence charged. There is nothing to do but to enter a
judgment thereon, for or against the accused, unless the court
should deem the verdict as found not to be sustained by the
evidence, when they mav set it aside and order a venire de novo.
State V. 3Joore, 7 Ired., 228.
76. A judgment on a special verdict leaves the matter of law
distinctly open to review in a higher court. Ibid.
77. When the court, in which a special verdict is found, sets
it aside, as it may do, it cannot of itself enter a gen-
eral verdict of guilty or not guilty ; that can only be done by a
new jury; and if it be done by the court, it is a mis-trial. Ibid.
78. A prisoner may be convicted upon his own voluntary and
unbiassed confession, without any other evidence. State v.
Cowan, 7 Ired., 239.
79. Upon a conviction on an indictment containing several
counts, one of which is good and the others bad, judgment must
be rendered for the State upon the good count. State v. Miller,
7 Ired., 275.
80. Where the record of the proceedings, on an indictment for
murder, uses the past tense instead of the present, it is not error
for which the judgment can be arrested. State v. Beeves, 8
Ired., 19.
81. Where a prisoner, indicted for murder, upon his arraign-
ment pleads not guilty, "and for his trial puts himself on his
country, " it is suflicient, without saying " on God and his
country." Ihid.
82. It is not error, when a jury is polled, and each juror
agrees to the same verdict of guilty, to enter it as the verdict of
the whole jury. State v. John, 8 Ired., 330.
83. It is not necessary that the record sliould show a venire
758 INDICTMENT.— TIL
facias,, either original or special,, to the term of a coui-t at which
a prisoner is tried. State v. Bar/ield, 8 Ired., 344.
84. Where the jury, on atrial for homicide, state "that the
prisoner at the bar " is guilty, and the clerk in recording the
verdict calls him "the prisoner at the bar," that shows, from the
record, tliat the prisoner was actually in court when the verdict
was rendered. State v. Collins, 8 Ired., 407.
85. Where there are different counts in an indictment under
the statute, for steahng a slave, one charging a taking by the
prisoner with violence, and another by seduction, and each of"
them also charging a conveying away with the intents required
by the statute, the jury are not bound to find in winch way the
taking was done, but the verdict may be general, though there
be other defective counts. State v. Williams, 9 Ired., 140.
8Q. It is in the discretion of the attorney general, on the
trial of a capital case, to introduce on behalf of the State only
such witnesses as he may think proper. State v. Steivart, 9 Ired.,
342.
87. If, on the trial of a slave for a capital offence, the counsel
for the prisoner does not ask the court to give to a mulatto wit-
ness, introduced on the part of the State, the charge required by
the act, Eev. Stat.,, ch. Ill, sec. 51, no advantage can be after-
wards taken of the omission of the judge to make such charge.
Ihid. (See Eev. Code, ch. 107, sec. 72.)
88. Whether such a charge was or was not given, cannot ap-
pear upon the record, unless placed there by the exceptions of
one or the other of the parties. Ibid.
89. Where several persons are indicted together for a trespass,
it is not a matter of right for any of the defendants to insist, on
the trial, that the jury should be required to pass upon the guilt
or innocence of any of the others, before they pass upon the
whole. This is a matter of discretion with the presiding judge,
to be exercised very cautiously, and from the exercise of which
there is no right of appeal. State v. Bogue, 9 Ired., 360:
90. Where there are two counts in an indictment, of which
one is good and the other bad, and there is a general verdict
against the defendants, the judgment will be presumed to have
been given upon the good count alone. But where both counts
are good, and the court gives erroneous instructions to the jury
as to one of the counts,, it is presumed that judment was given
upon both counts, and a venire de novo will be awarded. State
V. McCanless, 9 Ired., 375.
91. In this State, where one is indicted and tried as for a
felony, yet the facts averredi in the indictment do not support
the charge of felony, but amount to a misdemeanor, the court
may give judgment for such misdemeanor. State v. Upckwch, d
IrecT.,, 454.
92l Where a. defendant was, convicted on an indictment for a.
IXDICTMEXT.— III. 759f
felony, and appealed from the judgment thereon to the supreme
court, and the error assigned in that court was, that the facts
stated in the indictment did not amount to a felony, the supreme
court, thouc'h it reverse the judgment for this error, yet will,
(under the provisions of the act establishing the court,) give di-
rections to the co\n-t below to give judgment for a misdemeanor,
where it appears that such is the judgment which the court be-
low should have rendered. Ibid.
93. Upon the trial of an indictment for an affray, after the
jury had returned into court, and intimated an intention to ac-
quit one of the defendants, but had not announced their verdict,
the court told them that, if tliey believed the evidence, both of
the defendants were guilty; whereupon, the State's solicitor di-
rected the clerk to enter a verdict of guilty as to both, which
was done, and the jury being asked if that was their verdict,
made no direct assent but by a nod from each of them, it ims
held that this proceeding was so irregular and contrary to the
estabhslied mode, that the judgment should be set aside, and a
ve7i{re de novo awarded. State v. Shule, 10 Ired., 153.
94. A special verdict, which finds only the evidence from
which facts may be inferred, is defective. It must find the facts
themselves. State v Watts, 10 Ired., 2()9.
95. There is a distinction between a cause for a 7ieio trial and
a cause for mistrial; the former is a matter of discretion, the
latter a matter of law. State v. Tilcjhnan, 11 Ired., 513.
96. Where, on a trial, the circumstances are such as merely to
put suspicion on the verdict, by showing not that there was, but
that there migld have been, unclue influence brought to bear on
the jury, because there was opportunity and a chance for it; it
is a matter within tlie discretion of the presiding judge. But if
the fact be, that unuue influence was brought to bear on the jury,
as if they were fed at the charge of the prosecutor or prisoner;
or if they be sohcited and advised how their verdict should be ;
or if they hear other evidence than that which is offered on the
trial; in all such cases, there has been in contemplation of law
no trial and the supreme court, as a matter of law, will direct a
trial to lie had, whether the former proceeding purports to have
acquitted or convicted the prisoner. Ibid.
97. In indictments for misdemeanors, the court may, without
the consent of the defendant, withdraw a juror, when, in its dis-
cretion, it judges it necessary to the ends of justice. St<tte v.
Weaver, 13 Ired., 203.
98. It is not the duty of the officer prosecuting for the State to
examine, on a criminal trial, all the Avituesses who were present
at the perpetration of the act. *SVor^e v. Ferry, Busb., 330.
90. A\''here a record shows that the prisoner was brought to
the bar in the custody of the sheriff, and then, setting out the
drawing, &c., of the jury and their verdict^ contains this entry,
760 INDICTMENT.— III.
"the prisoner is remanded," the presence of the prisoner during
the whole trial appears with sufficient certainty, Statev. Lanq-
ford, Busb. 436.
100. Where a defendant, upon conviction, is ordered into cus-
tody until the fine and costs be paid, and is permitted l^y the
sheriff to escape, it is no discharge of the judgment, which may
still be enforced. State v. Sim'pson, 1 Jones, 80.
101. Where there are two counts in a bill of indictment, and
evidence of two similar offences proved, the court will not order
the solicitor to select one of the counts and abandon the other.
State V. March, 1 Jones, 526.
102. Where a jury, after rendering an insufficient verdict, in
a capital case, is discharged without any objection from tlie pris-
oner, he may, if the verdict purports to be one of "guilty," be
tried again. State v. Woodly, 2 Jones, 276.
103. Where the record of a conviction for murder shows that
a grand jury was drawn, empanneled, sworn and charged to
enquire for the State, of and concerning all offences, &c., and by
such grand jury, "it was presented in manner and form follow-
ing, that is to say," &c., (setting out the bill of indictment.) the
record is sufficient to show that the bill of indictment had been
properly found, v/ithout copying the entry of "a true bill," v/hich
is usually endorsed on bills of indictment, and the judgment will
not be arrested for such omission. State v. Guilford, 4 Jones, 83.
104. Such arecordissufficienttoshowthattheprisonerwastried
upon a bill of indictment as required by the act of 1797, instead
of a mere presentment. Ibid. (See R§v. Code, ch. 35, sec. 6.)
105. Where there are three counts in a bill of indictment, and
testimony Avas oftered as to one only, a verdict of guilty, though
general, will he presumed to have been given on that count to
which the testimony was applicable, ^tate v. Long, 7 Jones, 24.
106. Where a defendant was put upon his trial for petit lar-
ceny, and the term expired before the jury could agree upon
their verdict, and they left their room and dispersed without re-
turning a verdict, and the defendant went at large without be-
ing recognized to appear again, it was lield that the solicitor for
the State might, without leave of the court, have a m|Jifls issued
to take the defendant and put him upon trial again. State v.
Tilletson, 7 Jones, ] 14.
107. Where, upon the arraignment of one for murder, it was
suggested that the accused was a deaf mute, and was incapable
of understanding the nature of a trial and its incidents, and his
rights under it, if loas held proper for a jury to be empanneled
to try the truth of these suggestions, and if they should find
them to be true, then the court would decline to put the prison-
er on his trial. State v. Harris, 8 Jones, 136.
108. Upon the conviction of a prisoner in a capital case, the
sentence of the court must be carried into execution by the sher-
IXDICTMEXT.— III-IV-V. 761
iff of the county where tlie trial took place, and it is erroneous
for the court to order it to be executed, in the county from
which it was removed, by the sheriff of that county. State v.
Twir/gs, l.Winst., 142.
109. When the record of indictment states that the bill was
found by a grand jury, but does not show that it was endorsed
" a true bill," it is sufficient; and it is not erroneous that the re-
cord omits to state that the ^\dtnesses, upon whose testimony the
bill was I'ound, were sworn before they were sent. State v. Har-
wood, 1 Winst., 228.
110. It is not a ground upon which to arrest the judgment,
that the two offences of permitting a slave to go at large as a
free person, and of permitting him to keep house as a free per-
son, are joined in the same count of an indictment. State v.
Brown, 2 AVinst., 54.
See (Indictment — Plea of former acquittal or conviction, 6-7-
8.) (Jury — Of the conduct and province of the jury in the
trial of causes, 1-3-5-7-8-9-10-11.) (Practice— Removal of
causes, 2-6-23.) (Practice — Of the trial and its incidents, 13-
14-15-17-18-19-20.) (Retailer of spirituous liquors, 3.)
IT. HOW A PRESEXTMEXT IS TO BE SIADE, OR A BILL FOUND.
1. A presentment need not be signed by all the grand jury.
It should be handed to the court by the foreman, who is the or-
gan of the grand jury, to and from whom communications are
made with the court. It should be made in the presence of the
jury, but when entered of record no further evidence is requir-
ed of its authenticity. State v. Cox, 6 Ired., 440.
2. Neither the presentment of a grand jury, nor a bill of in-
dictment requires that it should be signed by any one. It is the
returning of the bill of indictment, publicly in open court, and
its being there recorded that makes it eifectual. Ibid.
3. Where, on the back of a bill of indictment, tlie clerk of the
court has certified, that certain witnesses were sworn and sent
to the grand jury, it is sufficient evidence that the bill was sent
to the grand jury. State v. Collins, 8 Ired., 407.
4. For the difference between a presentment and an indict-
ment, see State v. Guilford, 4 Jones, 83.
V. EFFECT OF A NOLLE PROSEQUI.
1. K nolle r>roscq}d, \\i crimmdX proceedings, does not amount
to an acquittal of the defendant, but he may be again prosecuted
for the same offence, or fresli process may be issued to try him
on the same indictment, at the discretion of the prosecuting offi-
cer. The defendant, however, when a nolle j^roseqid is entered, is
762 INDICTMENT.— Y-VI.
not required to enter into recognizance for his appearance at
any other time. State v. Thornton, 13 Ired., 256.
2. A capias, after a nolle prosequi, does not issue as a matter of
course at tiie will of the prosecuting officer, but upo^i permis-
sion of the court first had, and the court Avill always see that its
process is not abused to the- oppression of the citizen. Ibid.
See (Indictment — Of the trial, verdict and judgment, 24-25-
55.) (Indictment — Of quashing indictments, 8.) (Indictment
— Limitation of time within which an indictment will lie, 10.)
VI. PLEA OF FORMER ACQUITTAL OR CONVICTION.
1. A former conviction of another offence, of a different denomi-
nation, grounded on the same facts as those now relied on, is a
bar. State v. Ingles, 2 Hay., 4, (148.)
2. Where there was an acquittal, on an indictment for perjury
on an affidavit to cordinue a cause, and then the defendant was
indicted again on the same ajfidavit wit i an interdioti to procure
an (dtachmerd to issue, if was held that the plea of "former acquit-
tal " to the second indictment wds not sustained. State v. JVil-
liams, Conf Eep., 474, {^'1^.)
3. Where one was acquitted on a charge of stealing a note of
a certain bank, on an account of a mistake in setting forth the
name of the corporation, he cannot sustain a plea of former
acquittal, when charged for the same act in an indictment which
states the proper corporate name of the bank. State v. JfTdiam-
son, 3 jMurpli., 216.
4. Where two bills were found against the same person at the'
same term, in one of which he was charged with burglary and
larceny, and in the other, with robbery, in the felonious taking
the same goods- and the prisoner was tried on the fiist bill and
convicted of the larceny only;, held that he could not be put on
his trial on the second indictment, because it would conflict with
the principle " that no one shall be twice put in peril for the
same crime;" and on the refusal of the attorney general to pray
judgment on the conviction for larceny, the prisoner was allowed
his clergy and discharged.. Slate v Leivis, 2 flawks, 98.
5. AVhere a bill of indictment for an assault and battery was
found in the superior court against a person, who was subse-
quently, but before being taken to answer the charge in the
superior court, indicted and convicted in the county court for
the same offence, it was field that the county court had jurisdic-
tion of the case, notwithstanding the bill found in the superior
court, and to that bill he migM plead his former conviction in
the county court. Strde v Tisdale, 2 Dev. and Bat., 159.
6. The finding of'a bill does not confine the State to that single
bill ; another may be preferred, and the party put to trial on it,
although the first remains undetermined. I bid.
INDICTMENT.— YI. 763
7. If two iiidictments for the same offence be found in the same
court, the course is to quasli one, before the party is put to plead
on the other. If in difi'erent courts, the defendant ma}^ abate
the latter, by plea that another court has cognizance ol the case
by a prior bill. Should a plea in abatement not be made to the
second bill, and a conviction be had upon it, such conviction may
be plead puis darrien continuance, in bar of the first bill. Ibid.
8. If, to such a plea, fraud can be replied at all, it must be
averred on the record, and is not to be presumed from the mere
fact of the former bill having- been found. Ihid.
9. An acquittal upon an indictment for a rape against a per-
son of color, cannot be pleaded in bar to an indictment against
the prisoner, for an assault with intent to commit the rape upon
a white female, under the act of 1823, because both offences are
felonies created by different statutes, and the latter requires dif-
ferent allegations in the indictment, and different proof on the
trial from the former; and because an indictment for the com-
mission of a felonious act is not supported by proof of an intent
to do that act, and an indictment for the latter, if a felony, may
be sustained after an acquittal upon indictment for the former.
Stct'i V. Jesse, o Dev. and Bat., 98.
10. Where a person of color had been acquitted upon an in-
dictment for a rape, and is subsequently indicted for an as-
sault with intent to commit the rape upon a white female, he
cannot object upon the trial that the evidence proves an actual
rape, because the jury may convict for the specific- charge con-
tained in the indictment, notwithstanding it may also prove the
other charge for which the prisoner had been formerly tried and
acquitted. Ibid.
11. A former accpiittal, if it cannot be pleaded in bar to a sub-
sequent indictment, cannot be taken advantage of as an estop-
pel. Hid.
12. It is not sufficient to make a Judgment in one indictment
a bar to another, that evidence of the facts alleged in the first
would also be evidence of the facts alleged in the other; as an
acquittal upon an indictment for burglary and stealing is not a
bar to a second indictment, for the burglary wiUi the intent to
steal. Ihid.
13. An acquittal upon a former indictment can be no bar to a
second, unless the former were such as the prisoner might have
been convicted u})on, by proofs of the facts contained in the second.
Ibid. ^ _ '
14. The plea of autrefois acquit is no available defence, unless
the facts charged in the second indictment would, if true, have
been sufficient to support the first. Thus, where the defendant
was indicted for retailing spirituous liquor to one J. S., and it
appeared that,, upon the same facts, under a former indictment
for "retailing to some person to the jurors unknown," he had
764 INDICTMENT.— VI-VII.
been acquitted, upon the ground that the retailing was to the
said J. S., and not to one unknown, it was held that the plea of
autrefois acquit was no bar to the second indictment. Sate v.
BirmingJ/am, Busb. 120. S. P., State v. Bevels, Busb., 200.
15. Where a bill of indictment for an assault and battery was
found against the defendant in the superior court, and pending
the same, after his knowledge thereof and before his arrest, he
procured himself to be indicted for the same offence in the county
court, and there voluntarily submitted aaid was fined, it tuas held
that the conviction in the county court was a good plea in bar to the
indictment in the superior court. State v. Casey, Busb., 209.
16. Where a person has been tried and convicted in the coun-
ty court for an affray, he cannot be indicted and tried in the su-
perior court for the same act, on a bill for an assault and battery.
State Y. Stanly, 4 Jones, 290.
See (Evidence — In criminal proceedings and indictments, 75.)
Vn. OF QCASHmO INDICTMENTS.
1. An indictment for a forcible entry, v/hich was found solely
upon the testimony of one who, upon a conviction, would be en-
titled to restitution of possession, will be quashed. State v.
Felloivs, 2 Hay. 340, (520.)
2. The court will quash an indictment, wlien it is plain that
no judgment can be rendered in case of a conviction ; as when
the day, on which the offense was committed, is not laid in the
indictment. State v. Bouch, 2 Hay., 352, (540.)
3. The court will not quash an indictment for larceny, unless
the defect be plain and obvious. Hence, they refused to quash
where the caption of the indictment was as follows : " State of
North-Carolina, Franklin count^^, March sessions, 1798." State
V. Jeffreys, Conf Rep., 364, (441.)
4. In cases of doubt the court will not quash an indictment ;
because the defendant, if convicted upon the facts charged, can
have the same advantage of legal points upon a motion in ar-
rest of judgment, as upon a motion to quash. State v. Smith, 1
Murph., 213.
5. When a bill is found by the same grand jury that made
the presentment, on the testimony of some of their own body,
not sworn in court as witnesses, such proceeding is in opposition
to the act of 1797, and the bill must be quashed. State v. Cain^
1 Hawks, 352. (See Eev. Code, ch. 35, sees. 6 and 7.)
6. The power to quash an indictment, before the defendant
pleads, is purely a discretionary one. It is not usually exercised,
unless where the defect is gross and apparent, and not then, if the
offence be of a heinous nature. State v. Baldwin, 1 Dev. and Bat.,
195.
7. If an indictment be found without evidence, or upon insuf-
INDICTMENT— YII-VIII. 765
licient e^'idence, as upon the testimony of witnesses not sworn,
upon proof of tlie fact the bill ma}' be quashed, or the matter
may be pleaded in abatement. State v. Roberts, 2 Dev. and
Bat., 540.
8. Aftei" a motion to qnash an indictment containing two
counts, one of which is defective, the officer prosecuting for the
State may enter a not pros, as to the defective count, which will
remove the ground for the motion to quash, and leave the de-
fendant to be tried upon the charge contained in the good count.
Stata V. Buchanan, 1 Ired., 59.
9. If an indictment sufficiently charge any offence, though not
the one intended, it cannot be quashed. State v. Evans, 5 Ired.,
603.
10. AVhere one count in a bill of indictment charges the of-
fence to have been committed in one county, and another count
charges it in another, the counts, as a general rule, will be re-
pugnant, and the indictment will be quashed on motion, or the
prosecutor will be compelled to elect the one upon which he will
proceed. Skite v. Johnson, 5 Jones, 221.
11. But where a new county is established by act of assembly
out of an old one, and the act provides that the felonies, committed
in that teriitory which is now the new county, shall be tried in
the superior court of the old comity, there is no repugnancy in
charging it to have been committed in these two counties, sev-
erally, in different counts of the indictment. Ibid.
12. On the motion to quash an indictment, on the ground that
the witness, on whose testimony it was found by the grand jury,
was not sworn in court, it was held that the decision of the
judge in the court below on that question of fact was conclusive,
and could not be appealed from. State v. Barnes, 7 Jones, 20.
13. Though it is discretionary with the court whether they
will quash an indictment, or leave the party to take advantag-e
of the alleged defect in another manner, yet if the court refuse
to quash upon the ground that it holds the indictment to be suf-
ficient, an appeal will lie, and if the judgment be reversed in the
supreme court, the cause will be remanded that the court may
act upon its discretion. State v. Brannen, 8 Jones, 208'.
See (Indictment — Plea of former acquittal or conviction, 7.)
vni. VA^IA^■CE between the allegatioxs and proofs.
1. Where an indictment for a libel charged that the defendant
set up in public a board, on which was a painting or picture of
a human head, with a nail driven through the ear and a pair of
shears hung on the nail, and the proof was, that a human head,
showing a side face with an ear, a nail driven through the ear
and a pair of shears hung on the nail, was inscribed or cut in the
board by means of some instrument, but was not painted, it luas
766 INDICTMENT.-^VIII.
held that there was a fatal variance between the allegation and
the proof, and that tiie defendant must, therefore, be acquitted.
State V Poioers, 12 Ired., 5.
2. In an indictment for selling spirits to a slave, the property
of one " William INlichaels," the proof was, that the slave be«
longed to " William A. Michael," and it was held that, npon
the doctrine of idem sonanSj there was no Variance. State v.
Hoiiser. Busb , 410.
3. Where an indictment alleges a cheating in an executed
contract, and the proof establishes an attempt to cheat in an ex*
ecutory contract, which was abandoned before its consummation,
there is a variance which is fatal. State v. Corbeif^ 1 Jones, 264.
4. AVbere an indictment charged that the mortal blow was
given on the 27th December, and that the deceased, then and
tliere^ instantly died, and the evidence was that he lived for
twenty days after receiving the blow, it loas held that the va-
riance was immaterial. State v. Bal'er, 1 Jones, 267.
5. An indictment charging the defendant with going into a
religious congregation engaged in actual service, and their ex^
hibiting himself drunk, and by cursing and swearing with a
loud voice, and by making indecent gestures and grimaces, dis-
turbing it, is not sustained by proving that he disturbed it by
striking tlie meeting house on the outside w4th a stick. State v.
Sherr'V, 1 Jones, 608.
6. An allegation in a bill of indictment for murder, that a hus-
band drove his wife out into the open air and there left her,
wherebj'- she came to her death, is not supported by proof that
she voluntarily and unnecessarily remained in the open air,
whereby her death was caused. State v. Preslar, 3 Jones, 421,
; 7. The allegation of a bill of indictment, charging A and four
others wdth an assault on B, is not proved by the production of
a record which sets forth a bill of indictment, charging A and
Jive others with an assault on B. State v. Harvell, 4 Jones, 55.
8. The question as to what is a variance between the allega-
tion and proof is one of law, and when made in the court below
may be reviewed in the supreme court iipon an appeal. Ibid.
9. An allegation in an indictment, charging that the defenl-
ant stole a certain Ji. fa. " issued from the superior court of-
fice," is not sustained by proof that the fi.fa. was made out, but
retained by the clerk, at the instance of the defendant, until the
amount was paid by him. State v. McLeod, 5 Jones, 318.
10. If the name of the owner of a slave be set forth in an in-
dictment against one for unlawfully trading with the slave, it
must be proved as laid, and a variance wdll be fatal. Slate v.
Johnston, 6 Jones, 4(S5.
11. Upon an indictment for the felonious burning of a barn
with grain or corn in it, the prisoner cainiot be committed upon
- u"oof that he burned a crib with grain or corn in it. Slate v.
INDICTMENT— VIII-IX 767
LaugJiHn, 8 Jones, 354.
12. WhetlieT, where the manner of a homicide charged in a
bill of indictment is by cutting the throat of the deceased with
I knife, and the proof is, that it was done by blows inflicted on
he head Avith a gun, the variance is material, quaere. State
V. MurpJi, 1 Winst., 129.
13. A charge, in a bill of indictment, of a burglary with in-
tent to steal, is supported by proof that it Avas conjmitted with
intent to rob. Sfate v. Coch/, 1 Winst., 1U7.
See (Perjury, 1-6-8-16-21:.)
IX. LIMITATION OF TIME IN WHICH AN INDICTMENT WILL LIE.
1. The indictment, under Avhich a defendant is brought to
trial for trading with a slave under the 75th section, ch,"31, of
the Revised Statutes, must be commenced within twelve months
after the commission of the offence, according to the 80th section
of the same chapter; and it is no answer to this objection, that
another indictment for the same oifence was brought Avithin the
proper time. State v. TomUnson, 3 Ired., 32. (See Rev. Code,
ch. 34, sees. 84 and 89. The 80th section of the Rev. Statutes,
ch. 34, seems to be omitted in the Rev. Code, and the indict-
ment may be brought Avithin two years, as provided for other
misdemeanors by the 8th sec. of the 35th ch. of the Bev. Code.)
_ 2. A presentment, made AA'ithin two years after the commis-
sion of a misdemeanor, on which an indictment is founded, is a
commencement of a prosecution Avithin the meaning of the act,
and prevents the statute of limitations from attaching. State v.
Cox, 6 Ired., 440.
3. On an indictment for marrying a female infant under the
age of fifteen years, AAdiere the defendant relies upon the statute
of limitations as to prosecutions for misdemeanors, proof that the
marriage Avas by consent of the mother, and Avas solemnized by
a minister of the gospel in the presence of six or seven persons,
and tha,t the parties lived together afterwards openly as man and
Av-ife, shall protect the defendant from the operation of the pro-
viso, that the offence Avas committed in secret. State v. Watts,
10 Ired., 369. (See Rev. Code, ch. 35, sec. 8.)
_ 4. So, Avhere the parties Avent to an adjacent county to be mar-
ried, and afterwards returned to the county of their domicil,
where they lived together as man and Avife, theflx-t being known
to the community, and the defendant continuing in the open ex-
ercise of his duties as a minister of the gospel, it cannot be held
that he absconded from the county, in which he was married, or
concealed himself, so as to bring his case within the operation of
the second part of the said proviso. Ibid. (See Rev. Code, ch.
35, sec. 8.)
5. It is not necessary nor convenient to introduce, in an in-
768 INDICTMENT— INFANTS AND INFANCY.
dictment for a misdemeanor to which the statute of Hmitation»
applies, averments, Avith a view of taking the case out of the
statute, by bringing it within the proviso. Ibid.
6. The offence of conspiracy to cheat and defraud is not em-
braced within the exceptions of the act, Eev. Stat., ch. 35, sec.
8, hmiting the time witliin which prosecutions for misdemeanors
shall commence. State v. Christianbuiy, Busb., 46. (See Rev.
Code, ch. 35, sec. 8.) _
7. The word " deceit " in the act seems to have been used for
" cheating by false tokens," which olfence may be committed by
one person, and is distinct from the offence of " conspiracy," tlie
gist whereof consists in the confederation by two or more to do
tlie act charged. Ibid.
8. The State, on a trial for a misdemeanor, is not restricted in
its proof to the time stated in the indictment, where the time
is not a part of the offence, butmay show that it was committedat
any time within two years previous to the finding of the bill.
State V. Netvsom, 2 Jones, 173.
8. Where a bill of indictment for a misdemeanor was found
against the defendant by a wrong name, which he abated by
plea, and a second bill was sent and found, if ivas held, that the
second bill was but a continuation of the first, which had been
found within two years after the commission of the offence, and
that was sufficient, though the new bdi was found after the two
years. State v. Hailey, 6 Jones, 42,
10 If, in such case, the solicitor for the State had entered a
not. pros., and discharged the defendant, he might, by virtue of
the proviso in the Rev. Code, ch. 35, sec. 8, have sent a new bill
within one year, both indictments being against the same pcrsan
for the same offence. Ibid.
INFANTS AND INFANCY.
1. An infant who has been arrested in a civil suit, will b'e dis-
charged from custody on motion, upon the fact of infancy being
made to appear to the court by inspection, or the examination of
witnesses. Henry v. Smith, Mar., 56, (54.)
2. When an iiifant, Avho had conveyed his land by a deed,
after coming of age had said to the bargainee : " I will never
take advantage of my having been an infant at the time of exe-
cuting the deed, and it is my wish that you should keep the
land," it was held to be a confirmation of his deed, notA\-ith
standing he afterwards conveyed the same land to another.
rNFANTS AND INFANCT. 769^
Bomer y. Reynolds, 1 Hay., 143, (166.) (See Hoijle v. Stoive, 2
Dev. and Bat, 320.)
3. A promise, to defeat the plea of infancy, must be an express
one, made after the infant came of age. Alexander v. Hidcheson,
2 Hawks, 535.
4. The promise, made by a person to perform a contract en-
tered into while he was an infant, may be inferred from any
words or acts which show the acquiescence or assent of his
mind. It is, however, an inference ot fact, to be drawn by a
jury. Alexander v. Huicheson, 1 Dev. 13.
5. If an infant Hve with his father, who provides for him
every thing which, in his judgment, appears to be proper, the
infant cannot bind himself to a stranger, even for such articles
as might, under other circumstances, be deemed necessaries.
But if the infant live apart from his father, laboring and receiv-
ing the profits of his labor for his own use, he is 2^^'o tempore act-
ing as his own man, by the assent of his father, and will be liable
for necessaries suitable to his condition. Smith v. Young, 2 Dev.
and Bat, 26.
6. The question, whether necessaries or not, is a mixed one of
law and fact Whetlier the articles furnished to an infant are of
the classes, for which he is liable, is a matter of law; whether
they Avere actually necessary and of a reasonable price, is a
matter of fact. Jbid.
7. A deed of bargain and sale made by an infant is avoided
by his executing, at his arrival of full age, another deed of the
same kind, and for the same land, to another person. Hoyle v.
Stmce, 2 Dev. and Bat, 320.
8. It seems that to ratify a bargain and sale made by an infant,
some act done after full age, proceeding upon the notion that
the estate created by the deed subsists, is necessary, as the
receipt of the purchase money and the like. Ihid.
9. The disability of infancy can be insisted on only by the
infant, or his privies in blood; and privies in estate cannot' take-
advantage of it. But after the infant has avoided his deed, it
may be disaffirmed by any person. Ihid.
10. A feofment by an infant must be avoided by an entry,
before another person can maintain ejectment, because it passes
the land itself, and creates a defeasible estate. But a deed oper-
ating under the statute of uses does not transfer the land, and
only such uses are executed ;)«s are enforced in chancery; and
no use is there raised by the contract of an infan': to sell his
land. It seems, therefore, that it may be disaffirmed without an
entry, and by plea of not guilty and liberum tcnementnm; and
also that ejectment cannot be maintained on it, without showing
a confirmation after full age. Ibid.
11. The possession of a ven<lee tdcon under a deed from an
infant whether that deed is to be considered as void or voidable
I*
770 INFANTS AND INFANCY.
only, is adrerse to the infant — and much more is such the case
where the deed has been executed by the infant jointly with
others— and the infant cannot, after he conies of age, convey a
valid title to the land, while such adverse posaesnion continues.
Murray v. ShanJdiri, 4 Dev. and Bat., 289.
12. Where an infant executed a deed for land, by signing,
sealing and delivering it, and after he came of age endorsed on
it " I have signed the Avithin deed for the expressed purposes ;
and with the desire to ratify the same I hereunto affix my hand
and seal," and after signing and sealing the endorsement, deliv-
ered the instrument to the vendee again, it was held that, if the
deed ^^Tere absolutely void in the first instance, it was rendered
valid by the re-delivery, and if only voidable, the endorsement
under the hand and seal of the vendor was a proper act of con-
firmation. Ibid.
13. A contract made by an infant to work a certain specified
time with a carpenter, upon the consideration of the hitter's
boarding and clothing him, and learning him the trade, is not
binding upon the infant, and he may, at any time, leave the
service of the carpenter, provided he has not arrived at full age
and confirmed the contract. Francis v. Felmit, 4 Dev. and
Bat., 498.
14. If an infant have been furnished with necessaries, while
working with a mechanic to learn his trade, upon an action of
assumpsit brought against the infant for the value of the neces-
saries, it is a good defence under the plea of non assumpsit, that
the defendant's services in work and labor were equal to, or
exceeded in value, the necessaries famished. Ibid.
15. Where an infant purchased land and gave his note for the
purchase money, and, after he l)ecame of age, continued in posses-
sion of the land and promised to pay the 2iote, it iras held that
this was a confirmation of a contract by the infant after he
became of age, and he and his representatives were bound by it.
Armfield v. Tate, 7 Ired., 258.
16. A person cannot recover of an infant, who has a guardian,
for board and other necessaries, where the charges exceed the
infant's income. Hnssey v. Rountrec, Busb., 110.
17. A step-father, though he is not bound to support his step-
children, nor they to render him any service, yet if he maintain
them, or they labor for him, in the absence of any express agree-
ment, they will be deemed to have dealt with each other as
parent and child, and not as strangers. IJ)id.
18. A having sold a horse to B, an infant, and taken a note
for the price, and B having refused to pay, the contract was re-
scinded, the horse returned and the note surrended. It tvas
held in an action on the case by A against B, for an injury to the
Jiorse while in B's possession, that the sale was binding upon A;
that B was possessed under it as owner, and not as bailee, and
INFANTS AND INFANCY. 771
that consequently the action would not lie. Poe v. Home, Biisb.,
398.
19. Where an infant, who was sued on a bond given for two
old slaves, after he came of age proposed in writing to give
them back and pay half the note, and added " if they will not
accept the aoove offer, I will have to pay them I suppose, but I
shall do so at my convenience, as it will be nothing less than a
free gift on my part, the negroes being entirely valueless;" it
was Iteld that this did not render the infant liable on his bond.
Dicnlop V. Hales, 2 Jones, o81.
20. The law will imply a promise, on the part of infants having
no parents or guardian, to pay for necessaries furnished to them.
Hyman v. Cain, o Jones, 111.
21. A compromise made by an infant legatee, whereby he
received specific chattels of less value than the legacy, is not bind-
ing on him; but he is bound to account for the value of the
things he received, and a deduction of the amount of such value
must be made from the legacy. Tipton v, Tipton, 3 Jones, 552.
22. Timber, furnished an infant to enable him to build a
dwelling house on his land, is not a necessary, for which he can
be made lial)le. Freeman v. Bridger, 4 Jones, 1.
23. An infant, who has a guardian, cannot contract even for
necessaries. Ibid.
24. Where an infant bastard grandson was recognized, raised
and taken care of by his grandfather until he w^as fifteen years
old, it teas held that the relation between the parties reliutted
the implication of a promise by the grandfather, to pay for|work
and labcn- done by the boy on his grandfathers farm. Hudson
V. Lntz, 5 Jones, 217.
25. Although, at common law, a boy under fourteen years of
age is not inchctable for an ordinary assault and battery, yet if
the battery be of an aggravated kind, as if it be a maim, or be
lone with a deadly weapon, or if it be an act prompted by
uibridled lust, as an attempt to commit a rape, he may be in-
licted and punished, if it appear that he was dvli capax. State
V. Pufjh, 7 Jones, Gl.
26. An infant, who has executed a deed for land, cannot make
the deed eitlier void or valid l)y any act of his, done while under
age. And to make the deed valid, he must, after coming of age,
do !some deliberate act, by Avhicli betakes benefit under the deed,
or expressly recognizes its validity. McCormic v. Le(j(jett, 8
Jones, 425.
See (Judgment — Of irregular, void and erroneous judgments,
o3.) (Practice — Appearance and proceedings against one of
several defendants, 5.) (Habeas corpus, 1-2.)
772 IN FOKMA PAUPEKTS— INJUNCTION" BOND, ETC.
IN FORMA PAUPERIS.
See (Costs — Security for costs, 2-4-5.)
INJUNCTION BOND.
See (Bonds — Of the construction of bonds, and of their condi-
tion, 4-10-14-15-16-17-19.) (Bonds — Proceedings in suits upon
bonds, 9.) (Debt — When the action will lie, 5.)
INNS AND INNKEEPERS.
1. A common innkeeper is liable for any loss his gxiest
may sustain in his property, except it be by the agency of a ser-
vant or companion of the guest himself, or where, when the inn
is full, the guest is admitted upon tei^s. Quinton v. Courtney, 1
Hay., 40, ('51.)
2. An individual, who acts as ordinary keeper, without taking
out license and giving bond, but who has a license to retail
spirituous liquoi'S, may be indicted under the act of 1798 for ex-
acting more than the rates established hj the court of his
county, and he is estopped from denying that he is a tavern
keeper. State v. Wynne, 1 Hawks., 451. (See Rev. Code, ch.
79, sec. 3.)
3. One who entertains strangers onl}- occasionally, although
he receives compensation for it, is not an imikeeper; and if on
such occasions, gambling, drinking and fighting take place, he
is not indictable as the keeper of a disorderly house. State v.
3Iatthews, 2 Dev. and Bat., 424.
4. An innkeeper is, by the custom of the land, liable as an
insurer, for the goods and animals which his guest has with, him
for the purpose of his journey. But if his customer is only a
boarder, or the goods and animals are entrusted to the landlord
upon a special contract,^ or if they are not placed in the inn or
its appurtenances to be kept, he is only liable for negligence as
any other bailee. Hence, an innkeeper is not liable, without
proof of negligence, for the loss of a mule put by a drover into
a lot belonging to the landlord, separate from the inn, to be kept
under a special agreement. Neal v. Wilcox, 4 Jones, 146.
INSOLVENT DEBTORS— L
773
INSOLVENT DEBTORS.
I. Proceedings under insolvent debt-
ors' acts [irior to the act of 1822.
II. Proceedings under the act of 1822
and subsequent acts.
III. Of the property to be laid off for an
insolvent debtor under the acts of
18.44 and 1848.
IV. Of the creditor's liability for the
maintenance of his debtor in
jail.
V. Gf the prioiity of the claim of the
United States and the State.
I. PROCEEDIXG UXDER IKSOLVEXT DEBTORS' ACTS PRIOR TO THE ACT OF 1822.
1. Ten days' notice must bs given to the creditors before ta-
king the insolvent debtor's oath. Kennedy v. JFairman, 1 Hay.,
408, (470.) (See Rev. Code, oh. 58.) _
2. An insolvent shall not be discharged, if he will not account
for property proved to have been in his possession shortly be-
fore, and sold to one who had acted as his partner in trade. Ibid.
3. A discharge under the insolvent debtor's act, ordered by
the proper officers, will be presumed to have been regularly done,
until the contrary be shown. Pearh v. Folsom, 1 Hay., 413,
4. Under the first insolvent's act ot 1773, the defendant was
discharged, only as to those who had commenced suits against
him, and to whom notice had been given of the debtor's applica-
tion. Ibid.
5. Previous to the act of 1809, a debtor, imprisoned for debt,
was entitled to th.e benefit of the act fur the relief of insolvent
debtors, by remaining within the prison bounds, under a bond
given for that purpose, for the space of twenty days. Milelr v.
Huntei', 1 ^lurph., 394. (See Rev. Code, ch. 59, sec. 27, which
restores the law as it was before the act of 1809.)
6. When a defendant, in execution under the prison rules, is
afterwards thrown into prison by another creditor, he has a right
to be discharged from the walls of the prison under the insol-
vent laws. In the matter of Huntington, 2 Murph., 369.
7. A debtor imprisoned under a ca. so.., who takes the oath of
insolvency under the provisions of the act of 1773, and is dis-
charged, is protected from arrest at the suit of any other cred-
itor, to whom he was indebted at the time, by virtue of the 39th
section of the constitution of this state. Burton v. Dickens, 3
Murph., 103. (See Rev. Code, ch. 59, sees. 1 to 6.)
8. To entitle the debtor to this protection, he must deliver up
all his property real and personal, bona fde, for his creditors.
Notice to other creditors is not necessary, although the efiect of
his discharge, as to them, will be protection from arrest at their
suit. Ibid.
,9. When the debtor delivers up his estate for the use of his
774 INSOLVENT DEBTOES— I-IL
creditors, and commissioners are appointed, who- give notice to
the creditors to come in and receive their dividends, each credi-
tor has an option to come in or not. If he come and receive
his dividend, his debt is satisfied; if he do not, he may sue out
execution against such property as the debtor may thereafter
acquire. Ihid.
10. Where a debtor was taken under a ca. sa. at the instance
of one creditor, and gave bond with sureties for keeping within
the prison bounds, and afterwards was taken under another ca.
sa. at the instance of another creditor, and committed to close
prison, and gave notice to both creditors of his intention to take
the benefit of the oath for the reKef ol insolvent debtors, and ac-
cordingly on the day appointed the oath was administered to
him, and he was discharged, it was held that he was properly
discharged as to both, and it was no breach of his bond for the
prison. bounds that he afterwards went at large. Hoicard 'v.
Fasteur, 3 Murph., 270.
11. In proceedings under the act of 1773, for the relief of in-
solvents, the single fact to to be ascertained is honest insolvency ;
and when this is ascertained by the mode prescribed, either in
the first or third section, the consequence to the debtor is the
same; and he is entitled to be discharged from imprisonment as
to all creditors by the oUth article of the constitution. Jordan
v. James, 3 Hawks., 110.
12. The discharge of a debtor from prison under the act of
1773, as modified in the Revised Code, ch. 59,. sec. 1, that is,
where he shall have remaiiied in prison twenty days and been
discharged by two magistrates out of court, Avill not protect the
debtor from arrest at the instance of any other creditor than the
one at whose suit he was in prison, even though such other
creditor had notice of the debtor's application to be discharged.
Griffin V. Simmons, 5 Jones, 145.
13. Where one was in close custody for costs, and gave notice
to the clerk of his intention to take the oath of insolvency, and
the clerk appeared and tendered an issue of fraud before the
two justices to whom the application was made, whereupon the
justices sent the proceedings to the superior court, in which the
costs accrued, it was held that, under the 59th ch. of the Eev.
Code, the issue was properly triable ia that court. State v. Car-
roll, 6 Jones, 458.
See (Prison Bounds.)
II. PROCEEDINGS UNDER THE ACT OF 1822, AND SUBSEQUENT ACTS.
1. A debtor convicted o\ a fraudulent concealment of his ef-
fects upon an i^sue between him A, and ordered into custody
thereupon, according to the act of 1822, is not in execution at
the suit of B, another creditor,, in whose case no such conceal-
INSOLVENT DEBTOES— II. 775
ment "^as suggested or found. Folsom v. Gregory^ 1 Dev. 233.
(See Kev. Code, cb. 59, sec. 12, and following.)
2. A sheriff is not bound to take notice that the defendant in
a ca. sa. is not entitled to the benefit of the act of 1822, and
where, Avithout actual notice that the contract, on which the ac-
tion was brought, was prior to the time prescribed in the stat-
ute, he took a bond pux'suant to the act on executing a ca. sa.,
it VKis held that it was not an escaj)e. Jones v. Dunn, 1 Dev.,
32 a
3. A bond given under the act of 1822, for the appearance of
an insolvent at court, is good, if it be for double the original
debt, exclusive of interest and cost, and judgment may, on mo-
tion, be rendered upon it. Williams v. Yarborough, 2 Dev., 12.
4. The sureties to a ca. sa. boiid, taken under the act of 1822
for the relief af insolvent debtoi's, to protect themselves b}^ a sur-
render of their principal, must make it in the court to which the
ca. sa. is returnable, or to the slieriff of the county; and Avhere
the writ issues to another county, a surrender to the sheriff of
that county is a nullity. Mcxnnng v. James., 2 Dev., 254.
5. The right of the ]3laintiff in the execution to a summary
judgment survives to his personal representative. Ihid.
G A condition " to appear and claim the benefit of the act,
<.^c., and not depart the court without leave," is substantially the
same as that prescribed in the act. Ibid.
7. Where the defendant in a ca. sa. appeared at the return
day of the writ, and, upon an issue being made up, the cause was
continued, and afterwards the defendant made default, JieM, that
the condition was broken, and the plaintiff entitled to judgment.
Ibid.
8. The defendant in a ca. sa. bond, given under the act of
1822, is bound to attend at every term until the cause is finally
disposed of Arringkm v. Bass, 3 Dev., 1)5.
y. Under the act of 1822, for the relief of insolvent debtors,
the sickness of the surety is no excuse for the default of the prin-
cipal. Speight v. IVooten, 3 Dev., 327.
10. A discliarge of an insolvent, under the act of 1822, protects
him from ari'est by those creditors onl}'-, who had notice of his
intention to apply for it. Grain v. Long., 3 Dev., 371.
11. A defendant, wlio has given bond under the act of 1822
for the relief of insolvent de])tors, cannot object to the informali-
ty of the Ijond, and pray a discharge on account thereof Page-
v. Winninghavi, 1 Dev. and Bat., 113.
12. A person, who is surrendered in discharge of his bail, is
entitled to the benefit of the act of 1822 for the relief of insol-
vent del)tors. SmxiUwood v. Wood. 2 Dev. and Bat., 356. (See
Eev. Code, ch. 59, sec. (3.)
13. The act of 1822 for the relief of insolvent debtors extends
only to debts arising ex contractu, and not to those incurred for
T76 INSOLVENT DEBTOES— IT.
a penalty, or ex delicto. — Woolard v. Dean, 2 Dev. and Bat., 490.
14. Tlip bond for the defendant's appearance, nnder the act of
1822 for the rehei of insolvent debtors, connected with the exe-
cution, is in the nature of process to compel an appearance, and
the return day thereof must be certain. Window v. Anierson, 3
Dev. and Bat., 9. -
15. Where a co. sa. was issued from a spring term of a superi-
or court, returnable to the ensuing fall term thereof, and was
executed upon the defendant within less than twenty days of
such fall term, and the sheriff thei'eupon took bond and security
from the defendant under the act of 1822, which bond was dated
more than twenty days before such term, and was conditioned
for the defendant's appearance "at the next superior court of
law to be held, &c., on the 7th Monday after the 4th Mondaij of
March next, then and there," &c., and at the next spring term,
which sat on the Cth, instead of the 7th Monday after, &c., upon
the defendant's not appearing, a judgme it was talceu upon the
bond against him and nis surety, v.. loas held that the judgment
was irregular, and that whether the bond was to be prepared by
the sheriff or the defendant made no difference, as the judgment
was against the surety as well as the principal, and there was nr.
default of appearance according to the bond, and also that the
words "next court" would not control the specified time of the
Ith .Monday cfter the 4zth 3Ionday of March next. Ihid.
16. The act of 1838, which provides that if any persow shall be
convicted, in any court of record in this state, of any crime or
misdemeanor, and shall be in execution for the fine and costs of
prosecution, and shall have remained in prison for the space of
twenty days, he may be discharged in the manner tlierein pre-
scribed, do2S not repeal the act of 1831, ch. 13, providing for the hi-
ring out of free negroes and free persons of color for fines imposed
uponthem, except ^s the last expression of the legislative will ne-
cessarily abrogates so much of that act as stands in the way of its
provisions. State v. ManneJ, 4 Dev. and Bat., 20. (See Rev. Code,
ch. 59, sec. 1 and ch. 107, sec. 75.)
17. Upon a schedule filed by one tahen under a ca. sa., and
desirous to avail himself of the benefit of the act for the relief of
insolvents, it is not competent for the court to order, nor for
the clerk to issue, a writ to the sheriff to sell the scheduled prop-
erty, or so much thereof as will satisfy the plaintiff^'s debt and
costs, and have the same ready at the next term to render, " to
the court or to the parties entitled to receive the same;" and it
is consequently no breach of the sheriff's bond for him to tail or
neglect to execute such writ. Governor v. Harrison, 4 Dev. and
Bat, 4(31.
18. The property and debts contained in such schedule vest in
the sheriff, as assignee, to sell, collect and pay into court for the
.benefit of all creditors; and the proper course, to enforce the per-
INSOLVENT DEBTOKS— II. 777
formance of the sheriff's duties in relation thereto, is to have a
rule of court on the sheriff to sell the property and collect the
debts so assigned, and bring the money into court, and to at-
tach him for a contempt if the rule be not complied with. Ibid.
(See Kev. Code, ch. 59, sec. 21.)
19. When the principal obligor, in a bond given for his ap-
pearance at the county court, to take the beneht of the act for
the relief of insolvents, is regularly called at court, and failing to
appear judgment is gendered against him and his surety in the
bond, tlie surety has no right, ex dehifo justicioe, to come in on a
subsequent day of the term, and have the judgment set aside, in
order to allow him to make a surrender of his principal. In such
case the court may, undoubtedly, in the exercise of a sound dis-
cretion, set aside the judgment, and allow the surrender; but it
is not obliged to do so, but upon good cause shown, as that the
party has a good defence, and was kept away by accident or
misfortune. Beynolds v. Boi/d, 1 Ired., 106.
20. It is no objection to a man's taking the insolvent debtor's
oath, imder the acts of assembly, that he has conveyed, in a deed in
trust to satisfy certain creditors, an amount of property greater
in value than the amount of debts secured by the deed, when
he sets forth the deed in his schedule and surrenders all his
resulting interests. Adams v. Alexander, 1 Ired., 501.
21. Where one, who applies to take the insolvent debtor's oath,
upon rendering a schedule, sets forth in his schedule that he has
made a deed in trust of certain property to satisfy certain cred-
itors, and surrenders all his interest in the' property mentioned
in such deed, it is still competent for the opposing creditor to have
an issue made up to try whether the said deed is not fraudulent;
and if so found by the jury, to cause the debtor to be imprisoned
until he surrenders the property itself Ibid.
22. When a person has been ari'ested on a ca. sa. and given
bond for his appearance at court, to take the insolvent debtor's
oath, and the case is continued until the next term of the court,
a notice served on his creditors ten days before the terra, to
which the cause is continued, is a sufficient notice under the act
for the relief of insolvent debtors. Watson v. JVillis, 2 Ired., 17.
(See Rev. Code, ch. 59, sees. 10 and 11.)
23. If such debtor appear at the first term, or, in case of a con-
tinuance, at the term to which the cause was continued, though
he has failed to give due notice, or lor any other cause is not
pernmtted to take the oath, yet no judgment can be rendered
against his sureties in the bond, who are only responsible for his
appearance. Ibid.
24. On motion for a judgment against the sureties to the bond
of a debtor, given under the act for the relief of insolvents, it
was objected, first, that the christian names of the plaintiffs were
not inserted in either the Avarrant, judgment or ca. sa., and, sec-
778 INSOLVENT DEBTORS— 11.
oiidly, that tlie bond was not made to the plaintiffs by their
christian names. It loas held that the first objection was not valid,
because the imperfection was cm^ed after judgment by the statute
of amendments, and the ca. sa. properly pursued the judg-ment,
and gave the officer authority to make the arrest and take the
bond; and that the second objection was invalid, because the
officer literally pursued the statute in taking the bond, and the
averment of the christian names of the plaintiffs in the motion
was equivalent to a similar averment in a declaration in debt on
such a bond. Wall v. Jarrott, 3 Ired., 42, S. P. Lash v. Arnold,
8 Jones, 206, overruling CoJioon v. Morton, 4 Jones, 256.
25. A debtor arrested under a ca sa. gave bond for his appear-
ance at the county court, and on his appearance an issue of fraud
was made up, on which the jury found the fraud and conceal-
ment alleged, and the court ordered the debtor to be imprisoned
until he made a full disclosure of his effects, from which judg-
ment the debtor appealed, giving bond and security therefor.
In the superior court the issue was again tried and found against
the debtor, but upon being called he failed to appear. It teas held
that the plaintiffs were entitled to judgment against the sureties
to the appeal bond for their debt and costs. Upon such an appeal
the debtor is bound to appear in the superior court, as he orig-
inally was in the county court. IVill-im/s v. Bara/hn, o Ired., 86.
26. Although the ca. sa. on which the debtor was arrested may
have been defective, yet it is not compefent for the sureties to
the appeal bond to make that objection after judgment has been
rendered against their principal. Ibid.
27. If, upon a ca. sa. from a justice returnable to the county
court, instead of being returnable before a jvistice out of court
within three months, the defendant upon being arrested gave
bond to appear at the county court to take the benefit of tlie in-
solvent debtor's law, and he fail to appear at the time appointed,
and the court render judgment against him and his sureties,
such court cannot hear any objection at the same term against
such judgment; and, certainly, it cannot at the succeeding term
vacate such judgment. Dobbin v. GaMer, 4 Ired., 71.
28. A debtor, who proposes to take the benefit of the insol-
vent's act may, at any time after his arrest upon a ca. sa., and
before he files his schedule, transfer any portion of his property
bona fide for the payment of any of his debts, contracted before
his arrest; for a ca. sa. binds nothing but the debtor's body, and
leavef^his property free to be disposed of for any bona, fide jim^ose
of discliarging his other debts. Cheek y. Davis, 4 Ired., 284.
29. Any objection to a bond given, by an insolvent debtor ar-
rested under a ca. sa., must be made at the court to which the
bond is returnable and before judgment is rendered on it. Watts
V. Bo7jle,4: Ired., 331.
30. Though the law says that the officer, who has arrested a
INSOLVENT DEBTOES— IL 779
person on a ca. sa. and taken bond for his appearance at court,
shall return the process and bond on or before the second dav of
the term, yet the court may, if it think proper, order him^ to
return them on the first day. Ex parte .Summers, 5 Ired., 149
31. Where a person is arrested on a ca. sa., and an issue of
fraud is made up between him and his creditor in the county
court, and upon the issue being- found against the debtor, he ap-
peals to the superior court, the sm-eties for the appeal are bound
absolutely for whatever judgment may be rendered against their
principal in the superior court; and such sureties have no right
to surrender their principal to the sheriff in discharge of them-
selves. Williams v. Floyd, 5 Ired., 649.
32. Under the insolvent debtor act of 1(S22, the discharge of
a debtor, arrested on a ca. sa. at the instance of a creditor, oper-
ated only against ^tliose creditors who had been duly notified,
under the provisions of that act. Ihid.
33. Where a delator is arrested under different ca. sas. at the
instance of several creditors, he has a right under the act, Rev.
Stat, ch. 58, sec. 20, if he apply for his discharge as an insolvent
debtor, and fraud is suggested in answer to his application, to
requii-e that all the creditors he may notify shall join in the trial
of one issue, and the court will so direct. But this is for the ease
of the debtor, and he may waive the privilege by joining issue
with each creditor, and tlien a verdict in his favor in one case
will not discharge liim from his liability in the case of another
creditor. Ibid. (See Rev. Code, ch. 59, sees. 11 and 16.)
34. Wh^re a debtor has been arrested on a ca. sa. and given
bond for his appearance at court under the act, and the
sureties surrender him and he is ordered into custody, the com-
mittitnr is in execution, and the sheriff has no power to discharge
the debtor out of prison, of his own will, and without the order
of the court. Wright v. Bohcrts, 6 Ired., 119. (See Rev. Code,
ch. 59, sec. 6, from which it appears the debtor may give bond
and security, when committed in execution by the court after
judgment.)
35. Where an insolvent debtor, in filing his schedule, only
surrenders his interest in certain property conveyed by a deed
in trust, and the jury, upon an issue, find the deed fraudulent,
he must be imprisoned until he makes a surrender of the whole
property so conveyed. HuttonY. Self, 6 Ired., 285.
36. After a debtor arrested upon a ca. sa. has given bond with
suretif'S, to take the benefit of the insolvent debtor's act, and has
joined in an issue tendered by the plaintiff upon a suggestion of
fraud, it is too late for him or his sureties to bring forward an
exception to the ca. sa. under which he Avas arrested. Freeman
V. Zi.s/.-, 8 Ired., 211.
37. Where a debtor, alleging that lie is insolvent, appeal's in
court under an arrest and bond given^ he can only be discharged
780 INSOLVENT DEBTORS— II.
by taking tlie oath prescribed by law, or by the act or consent
of the creditor. Ibid.
38. If* an issue of fraud has been made, tliere cannot, as to
that, be a nonsuit. I hid,
39. In a proceeding under the insolvent law, when the debtor
has been arrested under a ca. sa., it is too late for him, after giv-
ing bond and joining in an issue of fraud,, to take exception to
tlie writ of ca. ,sa. Nixon v. Nunnery, 9 Ired., 28.
^ 40. Although a ca. sa. may be void, yet the court has jurisdic-
tion of the subject matter, and objections to any part of the pro-
ceedings mu&t be made in apt time. Ibid
41. When the creditor alleges fraud, if his specification be not
sufficiently certain, and a defendant, before issue joined, objects
to it, and the court should refuse to make it certain, it would be
error. ' But an objection to the specification will be too late after
issue joined, because the verdict may cure the defect. Ibid.
42. It is not necessar}^ that the land, alleged to have been
fraudulently conveyed by the debtor, should'be over the value
of ten dollars. The law does not permit the debtor to -convey
land or any other visible property, with intent to defraud, no
matter how small the value, Ibid. '
43. Where a defendant has been arrested upon mesne process
and given bail, and after judgment the bail surrenders him to
the sheriff, out of term time, no execution having been issued on
the jiidgmcnt, nor any commiititur prayed by tlie plaintiff, if the
sheriff cannot take a bond from him to appear at court and take
the benefit of the insolvent law, and if he do and release the de-
fendant, he is guilty of an escape. State v. Ellison, 9 Ired., 261.
44. The act, liev. Stat, ch. 58, sec. 7, only applied to cases
where the debtor, upon a surrender of his bail, is ordered into
custody by the court. Ibid. (Altered so as to embrace a case
of surrender by bail out of court. See Rev. Code, ch. 59, sec. 6.)
45. After a surrender by bail, if the creditor, upon reasonable
notice, will not charge the party in execution, either a habeas
corpus or a supersedeas would be issued by tJie court. Ibid.
46. Although the bond of a debtor, arrested upon a ca. sa.
within twenty days of the term of a court, should be conditioned
for his appearance at the term next succeeding to that, yet the
debtor may waive this privilege, and give a bond for his appear-
ance at the first term, and this bond "shall be valid. Hardison
V. Benjamin, 9 Ired., 331.
47. A bond taken for the defendant's appearance under a oa.
sa., issued by a justice in Buncombe county, ought to be returned
to the county court of that county, notwithstanding the provis-
ions of the act of 1844, abolishing jury trials in the county courts
of that county. Fox v. Wood, 11 ired., 213.
48. In the case of a proceeding nnder the insolvent debtor's
law, the court has authority to permit the schedule to be .amen-
INSOLVENT DEBTORS— n. 781
ded, so as to make more certain the description of the defendant's
interest in matters there set forth, at any time before the oath
is administered; and if the plaintiff be surprised by such amend-
ment, it is a ground for a continuance. McLeod v. KiiMam, 11
Ired., 509.
49. It is sufficient to file the evidence, of the- debts, set out in
the schedule, which are in the possession and control of the de-
fendant, at any time before the oath is administered. Ibid.
50. It being- a matter of public notoriety, that proclamation
money is wholly worthless, it is not necessary to i-tate in the
schedule the amount thereof with nicety, or to file the same.
Ibid.
51. A bond given by a person arrested on aca. so., for his ap-
pearance at C'^urt, is required by law to be made payablj to the
plaintiff in the execution ; and if the bond be made payable
otherwise, the court cannot enter a summary judgment upon it.
Williams' v. Bryan, 11 Ired., 613,
52. Whtra a person, arrested on a co^sa., gave a bond payable
to A B, who made the affidavit for the ca.^a., styling himself the
agent of C. D., the plaintiff, no action can be maintained on
such bond in the name of C. D., because he is not the obligee
in it. Jhid.
53. AVhere a party, wdio has been arrested under a ca. sa., gives
bond for his appearance, &c., he may, when a judgment is moved
for upon an alleged breach of the bond, adduce any matter whicli
amounts to a defence. Rohinfion v. McDugald^ 12 Ired., 136.
54. A defendant was arrested under a ca. sa. and gave bond
as required by law, th« plaintiff was permitted io amend his
execution and the defendant allowed to appeal ; in the superior
court the plaintiff moved to dismiss the appeal,, on the ground
that the appeal was improvidently granted, aiid the motion was
sustained l;y the court and the appeal ordered to be dismissed;
and it ivas held that the plaintiff was not then entitled,
in the superior court, to a judgment for his debt and costs
against the defendant and his sureties on the appeal bond.
(Jhunn V. Jones, 12 Ired., 251.
55. The writ of ca. sa., as well as the affidavit authorizing it,
must correspond with the judgment upon which it is issued.
Therefore, where a judgment was obtained against A and B
jointly, and a ca. sa. issued against A alone, it urns held, that the
j)roceedings were irregular, and the defendant was entitled to be
discharged. Judson v. M'-ClcUand, Busb., 262.
56. Where a bond' Avas returned to the county court, for the
appearance of a debtor, under the act for the relief of insolvent
debtors, with A, B and C as his sureties, and such person and
hirt sureties were discharged from "all liability on his bond,"'
and the defendant in the execution gave a new bond for his
further appearance at court with A and D as his sureties, and.
^§2 INSORVEN^r DEBTOES^II.
tlie case was then continued for three terms, when a jiiclgwient
was entered against A, B and C, the sureties on the first bond,
it teas held that the judgment was improper and void. CoJioon
v.. Morris^ 1 Jones, 218.
57. Upon an appeal to the superior court from the judgment
above mentioned, it zvas held tliat no judgment could be given in
that court upon the bond of A and D, because it was not before
the court, and that no judgment could be given upon either bond
against A alone. Ihid.
58. Where a ecu sa. bond was taken, payable to the person who
had the erjuitable interest in the claim, and a judgment was
taken on it, m default of the obligor, in favor of the legal owner,
it icas held that the judgment was erroneous, and might be set
aside on motion, made the day subsequent to that on which the
judgment was rendered. Ernie v. Dobson, 1 Jones, 515.
51). Upon an issue of fraud, under the insolvent debtor's act,
where a debtor had conveyed all his visible property in trust,
and many circumstances tended to show that by a fraudulent
collusion with tlie trifstee and another, a large amount of the
property of the debtor had been transferred by the trustee to the
debtor's son, a youth of eighteen without means, it loas held to
be error in the judge, after assuming that the deed in trust and
sale to the son might be fraudulent, to instruct the jury that they
should not find the issue against the debtor, unless they believed
that the property was purchased for him. It should have been
submitted whether the transfer to the son was bona fide and for
value paid by him. Adaysv. Sc<:/?)?a??, 3 Jones, 140.
GO. A debtor, under the 4th section of the 58th chapter of the
Eev. Statutes, is entitled to insist that suggestions of fraud made
by a creditor shall be verified by his oath and tried by a jury;
aiid a judge cannot decide upon the necessity of such sugges-
tions, and the making up an issue to be submitted to tlie jury.
Purvis V. Bohiiison, 4 Jones, 96. (See Rev. Code, ch. 59, sec. 3 )
Gl. No judgment can be taken in the county court upon a ca.
sa. bond, if the debtor appear when called at the court to which
he is bound, although his surety does not surrender him. But
if a judgment be erroneously rendered, and he appeals to the
superior court, he is still bound to appear when called in the reg-
ular course of that court, and if he fail to do so, the plaintiff will
be entitled to judgment against him and the sureties to his ap-
peal bond. Blears v >Spei'jht, 4 Jones, 420.
G2. Upon the surrender in court of a debtor by his sureties, it
is sufficient, in order to have him committed mto custody, that
the afhdavit filed by the plaintiff alleges, " that the defen-
dant is about to remove from the State." Farmers Bank of
North Carolina v. Freeland, 5 Jones, 326.
Go. In the twenty days, within which under the 8th sec, 59th
ch. of the Rev. Code relating to insolvent debtors, a ca. sa. must
INSOLTEXT DEBTORS— II-III. 783
be executed, Sundays are included. Dralce v. Fletcher, 5 Jones,
410.
64. Where, to a schedule filed by nn insolvent debtor, a cred-
itor alleged in his specifications of fraud, that two notes had been
fraudulently transferred to secure a feigned debt, and tlie jury,
upon an issue submitted to them, found the allegations to be
true, whereupon the debtor filed a new schedule, admitting that
the debt secured by the deed in trust was feigned, but to acquit
himself of the fraud made other allegations, among which one
w^as that the trustee had run away with the funds, and he sur-
rendered his claim upon the trustee, it ivas Jield that, though the
creditor could not make any other suggestions of fraud upon the
first schedule, yet he had a right to do so as to matters set
out in the second schedule. Farrar v. Bedwine, 6 Jones, 143.
65. When a defendant gives a bond for his appearance at
court, and while he is at large by virtue thereof, he is not enti-
tled to be discharged on account of the fact that the ca. sa., un-
der which he was taken, is voidable; nor can he move, while
thus at large, to quash the proceedings on that account. Bryan
V. Brooks, 6 Jones, 580.
()6. If an insolvent debtor omit to include in his schedule prop-
erty assigned to him by commissioners, under the act. Rev. Code,
ch. 45, sees. 8 and 9, he cannot be convicted of n, fraud ale nt con-
ceabiieni of it, although it is a chose in action which could not be
assigned to him under the act. Ballard v. Waller, 7 Jones, 84.
See (Judgment — Of the effect of a judgjuent, 12.) (Judgment
• — Of irregular, void and erroneous judgments, 39.) (Prison
Bounds.)
ni. OF THE PROPERTY TO BE LAm OFF TO AN INSOLVENT DEBTOR.
1. A h.ouscholdcr, wb.o wishes to avail himself of the act of
1844, may do so, by making application and procuring the as-
signment to be made according to the act, at any time, (even af-
ter a levy of an execution or attachment,) before the property is
changed or converted by a sale. Slate v. Floyd, 11 Ired', 496.
(See Rev. Code, ch. 45, sees. 8 and 9.)
2. Where, under the act of 1848, three freeholders are ap-
pointed to lay off the property of an insolvent debtor to be ex-
empt from execution, they have authority, under the words
"other property," to set apart, for the use of the debtoi, a mare
and five lujgs, provided these articles do not exceed fifty dollars
in value. Vmn v. Krng, 13 Ired., 20.
3. The act of 1844 includes under the terms " debts contrac-
ted" a bond given after the 1st July, 1845, though the conside-
ration of the bond had existed before that time. Ibid.
4. Under the act of 1848, the insolvent debtor has a right to
have allotments for his benefit made by the freeholders from
784 INSOLVENT DEBTORS— III-IY.
time to time, as his necessities may require, provided the allot-
ments be made at intervals not unreasonably short. Each allot-
ment must be complete in itself, so as to designate all the arti-
cles allowed. Ibid. (See Eev. Code, ch. 45, sees. 8 and 9, also
act of 1856, ch. 2.)
5. The provision allowed insolvent debtors under the act of
1848, ch. 32, may lawfully be laid off to them after an issue of
fraud is made up, and while it is still pending in court. Schonwald
V. Capps, 3 Jones, 342. (See Rev. Code, ch. 45, sees. 8 and 9.)'
6. A chose in action cannot be included by commissioners in
their allotment of an insolvent debtor's provision, under the
Revised Code, ch. 45, sees. S and 9. Ballard v. Waller^ 7 Jones, 84.
7. If an article of property'" laid off to an insolvent house-
keeper, under the Rev. Code, cb. 45, sees. 8 and 9, be exchanged
for another article, the latter is not exempt from execution.
Lloyd V. Durham, 1 Winst., 288.
8. It seems tnat the debtor might have procurred the article
received in exchange to be laid off to him by a second allotment,
and then it would have been exempt. Ibid.
See (Insolvent Debtors — Proceedings under the act 1822 and
subsequent acts, 60.) (Recordari, 14.)
IV. OF THE creditor's liability for the maintenance of his deijtor
IN jail.
1. A creditor is not liable for the maintenance of his debtor in
jail, unless he discharges the debtor, who is unable to pay for
such maintenance. Turrentine v. Murphy, 1 Murph , 180. (See
Rev. Code, ch. 59, sec. 5.)
2. Where a man has been arrested under a ca. sa., and has
given bond for his appearance at court, where an issue of I'raud
has been made up, and the issue continued from term to term ;
where his sureties have from; time to time surrendered him ;
where the issue has been decided against him, and he has been
committed to prison at the instance of the creditor; it loas held
that under the act. Rev. Stat., ch, 58, sec. 6, the creditor was re-
sponsible to the jailor for his fees, or alio vance for the food fur-
nished the prisoner, during the whole time he was confined in
jail. Veal V. Flake, 10 Ired., 417. (See Rev. Code, ch. 59,
sec. 5.)
3. When a debtor is committed to prison, and is permitted to
take the prison bounds, the jailer is under no obligation to fur-
nish him with provisions for a support, and, of course, the cred-
itor cannot be compelled to re-iml')urse the jailor for any provis-
ions which he mavhaveso furnished. Phillips v. Allen, 13 Ired.,
10.
4. Where a debtor, who is imprisoned at the instance of his
creditor, has no property in the State, out of which the prison
INSOLVENT DEBTORS— IV-V— INSPECTORS, ETC. 785
fees and the charge for his support can be satisfied, notwith-
standing he may have sufficient in anotlier state, the jailor has
a right to recover the amount from the creditor, under the Rev.
Stat, ch. 58, sec. 6, making him responsible "if the prisoner be
unable to discharge them." Faucet v. Adams, 13 Ired., 235. (See
Rev. Code, ch. 59, sec. 5.)
V. THE CLAIM OF THE UNITED STATES AND THE STATE.
T. The act of Congress of March, 1797, gives to the United
States a piiority; 1st, where the debtor has become insolvent;
2nd, where the estate of a deceased debtor, in the hands of his
executor or at hninistrator, is insufficient to pay all his debts; 3rd,
where the debtor, not having sufficient property to pay all his
debts, makes a voluntary assignment thereof; 4th, where the
estate or effects of an absconding, concealed or absent debtor,
shall be attached by process of law. Young v. Tate, 3 Murph.,
498.
2. The act of July, 1798, makes the amount of debts due the
United States a lien upon the real estate of the collector from
the time suit shall be instituted for recovering the same; and
provides that for want of goods and chattels the land shall be
sold. This lien is qualitied and conditional, and subjects the
land to be sold onlv where the debtor has no personal estate
Ibid.
INSPECTORS OF ELECTIONS.
1. Inspectors of elections are, under the act of assembly, the
exclusive judges of the qualifications of voters, and where no
corruption is charged and found against' them, they are not
responsible in damages to a voter,, whose vote is excluded on
accountof a mere error in judgment. Feavev. Fobhins, d Jones,
339. (See Rev. Code, ch. 52,. sec. 10.)
TNSURANCE.
1. A provision in a policy of life insurance, excepting from
liability the cases of death "by means of invasion, insurrection,
riot or civil commotion, or of any military or usurped authority,
78G INSURANCE.
or by the hands of justice," does not embrace the case of a slave
insured, who is killed in an armed and violent resistance to the
authority of the patrol. Spi^uill v. North Carolina Mutual Life
Insurance Company, 1 Jones, 126.
2. Where specific descriptions of the property insured are re-
quired by the terms of a fire insurance office, which are referred
0 and iiicorporated as part of the conditions of the policy of
insurance, the suppressi(m of an immaterial fact will not inval-
idate the policy. Whitehurst v. Fayettecille llutual Insurance
Company, 6 Jones, 352,
3. The failure of the person insured to repair a defect in the
property, occurring after the contract was made, unless he be
guilty of gross neglect, does not prevent the insured from re-
covering on the policy. Ibid.
4. Losses arising from bona fide efforts to extinguish fire, such
as the wetting and soiling of goods, and losses by theft consequent
on their removal, are fairly within the contract to insure against
fire. Ibid.
5. Where, by a policy, the life of a slave was insured for five
years absolutely, without requiring the payment of the annual
installment, as a condition of the defendant's liability, it laas
held that the insurance money for a loss was not forfeited by a
failure to pay such instsl'ment. Woodfin v. Asheville Mutual In-
surance Company, 6 Jones, 558.
6. Where a paty became a member of a mutual insurance
company by talcing out a policy, if was held, that he thereby as-
sented to, and became bound by, the by-laws then in force; and.
as one of these required that a particular account on oath of the
circumstances of a loss should be given forthwith to the com-
pany, it u'as held further that no action could be sustained for
such loss, without furnishing- such account within a reasonable
time, although this provision was not embodied in the policy.
Ibid. S. P., Boyle V. North Carolina 3Iutucd Insurance Company,
7 Jones, 373.
7. Where one of the by-laws of a mutual insurance company
required that the insured, within thirty days after a loss b}^ fire,
should give notice to the company, specifying the amount of
loss, the manner of it, and other particulars, as a condition to
his right to recover; it urns held that a declaration to the insured
made by a travelling agent of the company, that "the matter
would be all rig]it with the company," was not a waiver of the
necessity for such notice. Boyle v. North Carolina Mutual In-
surance Cojnpany, 7 Jones, 373.
8. A requisition in a policy of insurance, that the person in-
sured should " forthwith " give notice of a loss, to the company,
is not complied with by giving notice at the expiration of
twenty days. Whitehurst v. North Carolina Mutual Insurance
Ccnnpany, 7 Jones, 433.
INTEREST. 787
INTEREST.
1. In an action for goods sold and delivered, interest should
^36 allowed according to the custom of the state where the sale
was made. Kaighn v. Kennedy, Mar., 37, (26.)
2. Whenever one person has the money of another, and
knows Avhat sum he ought to pay, he must pay interest for the
same. State w Blount, 1 Hay., 4, (7.) S. P., Hunt v. Jucks, J bid,
173, (199.)
3. Interest must be calculated by the following rule : it must
be estimated upon the principal from the time it commenced to
the day of the first payment ; if the payment were equal, and no
more than equal, to the interest then due, it must extinguish the
interest; if it exceeded the interest, the balance, after extin-
guishing the interest, must be deducted from the principal ; if
the payment were less than the interest, then the balance of in-
terest must remain until the next payment; interest must then
be calculated upon the principal remaining, to the time of the
next payment, which next payment must be applied in the first
place to the whole of the interest then due; and so toties quo-
ties. Bunn v. Moore, 1 Hay., 279, (323.) S. P., Anomjmom, 2
Hay., 17, (1(J9.) Ahrth v. JlLdletf, Ibid, 151, (329.)
4. Interest must be calculated according to the law of the
place where the contract was made. Anonymow., 2 Hay., 5, (149.)
5. The plaintiff is entitled to interest upon his judgment if he
institute a new action upon it; but not if he revive it by a sd.
fa. Anonymous, 2 Hay., 26, (182.) (Interest is now given by
Kev. Code, ch. 31, sec. 90.)
6 A promissory note to pay at the end of seven years from
date, without interest, will bear interest after seven years.
McKinhy v. BlacUedge, 2 Hay., 28, (185.)
7. Where a note is payable on demand, interest does not
accrue until a demand is made; when no time is appointed, the
money is payable immediately, without a demand, and interest
accrues immediately. Leivis y. Lewis, 2 Hay., 32, (191,) S. P.
Freelandv. Edicarcls, Ibid, 49, (207.)
8. British creditors were not entitled to interest on their debts
after the Revolution until a demand after the treaty of peace.
Anonymous, 2 Hay., lU3, (263.)
9. When notes are received by a creditor, as a payment, the
debtor should be credited for them at the time of the receipt, to be
applied in the first place to the interest and then to the principal
as other payments; otherwise when the creditor makes them
his own only by delay. North v. Mallett, 2 Hay., 151, (329.)
10. If it be the rule of a merchant to charge interest on goods
sold from three months after the sale, interest should be given ac-
cordingly. Williams Y. Ferebee, 2 Hay., 392, (589.)
788 INTEREST
11. Interest will continue to accrue on a debt, if the creditor
were in the country when it became due, ahhough he be after-
wards absent without heaving an agent. CorncU v. King, Conf
Rep., 446, (505.)
12. A debtor, who is ready to pay his debt when it becomes due,
is excused from paying interest thereon, if the creditor conceal his
place of residence, and the debtor know not where to apply to make
payment. Child v. Devereiix, 1 Murph., 398.
13. It was the design of the act of 1807, to allow a plaintiff
interest on the principal sum recovered, from the rendition of the
judgment; and where the whole sum is assessed in damages, the
jury must distinguish between principal and interest; but where
the principal and intei-est are discriminated on the record, or it
can be collected from the record what the principal is, interest
shall be calculated on that. DeJoach v. WorJce, 3 Hawks,, 36.
14. A note payable one day after date, with an endorsement
thereon that it was not to be paid until the death of the maker,
])ears interest from the time it became due, without reference to
the endorsement. PowtU v. Gmj.. 3 Dev. and Bat., 70.
15. When claims are put into the hands of an officer for col-
lection, and he refuses or neglects to account for them, he is
justly chargeable, not only for tbe principal sums, but also with
interest from the time the claims began to bear interest. State
V. Allert, 5 Ired., 36.
16. The rule, as to interest payable on debts, is regulated by
the law of the country in which the contract is made, the law
presuming that the contract is to be executed there, unless the
])arties sti})ulate otherwise; and this stipulation, to take the case
out of the general rule, must appear on the face of the contract.
Arrmgton v. Gee, 5 Ired., 5U0.
17. A bond, taken simply to secure the performance of a con-
tract, wherever it may be executed, must bear the same interest
as the original contract, unless it be otherwise expressed on the
face of the bond. Hence, where A, a citizen of North-Carolina,
took a number of slaves to Alabama, and there sold them to B,
a citizen of Alabama, who was to give him a bond with secur-
ity for the price of the slaves, and this bond was executed by
K^ in Alabama, where it bore date, and was afterwards brought
to this state, where it was executed by two sureties, citizens of
tills state, the bond not expressing any place of payment, // was
held that the sui'eties, as well as the principal," were bound for
the pnvment of interest according to the laws of Alabama. Ihid.
is. Where the contract for the loan of money is made in Geor-
^'•ia, it will bear Georgia interest, though the note taken for the
amount lent be made in this state. Davis v. Coleuiav, 7 Ired., 424.
19. An execution cannot require the collection of interest, when
the judgment upon which it is issued does not give it. Gollais
V. McLeod, 8 Ired., 221.
IKTEEEST— JOINT OBLIGATIONS. 789
20. When A, a citizen of Georgia, being in this State, offered
to lend B $G,000, but on his return to Georgia, not having sold
his cotton crop, wrote to B that he coukl only lend $3,000,
whereupon B went to Georgia, there received the money and
executed his note for the amount, it was held that B was bound
to pay eiglit per cent, the interest according to the laws of
Georgia. Davis v, Coleman, 11 Ired., 303.
21. A party, who sues for stipulated damages, is not entitled
to interest, even from the date of his writ. Devereiix v. Bur-
giuym 11 Ired., 490.
22. In England, the rule is that interest is to be allowed,
where there has been an express promise to pay mterest, or
where such promise is to be implied from the usage of trade, or
other circumstances; but for goods sold, money lent, money
paid, work and labor done, or on a guarantee, interest is not
allowed, unless there be an express or implied agreement. Our
decisions liaA^e extended the rule, and for money lent, or money
paid, or had and received, or due on an account stated, the jury
ought to be instructed to allow interest, the promise to pay being
implied from ih^ iiature of the transaction. And in trover and
trespass de bonis asportaiis the jury may, in their discretion,
allow interest upon the value, from the time of the conversion or
seizure, as a part of the damages, so as to compel the wrongdoer
to make full compensation, by charging him with the price as at
a cash. sale. Ibid.
23. Where there is a penal bond lor the payment of money,
mterest may be recovered upon the sum really due, up to the
time of payment, even after judgment. But if the condition be
for the performance of some collateral act, as to execute a mort-
gage or deed of trust, as additional security for payment of
money, interest cannot be recovered on a sci. fa. upon the dam-
ages assessed. Trice v Turrenfine, 13 Ired., 212.
24. Interest, being an incident to a bond for the payment of
money, cannot be recovered in a separate action for it alone, af-
ter the principal of the bond has been paid. 3Ioore v. Fuller, 2
Jones, 205.
25. Where a person has money in his hands as agent, and
when it is demanded of iiim denies liis obligation to pay, he is
responsible for interest from that time, but not for any previous
time. Hyman v. Gray, 4 J(mes, 155.
See (Heirs, 7.) (Judgment — Of irregular, void and erroneous
judgments, 27.) {Lex. loci, 10-18.) (Sheriff^ — Liability for es-
capes, 20.)
JOINT OBLIGAXrONS.
1. A firm in Maryland gave its promissory note to A, signed
in .the name of the firm, and A sued one of the partners alone,
790 JOINT OBLIGATIONS-JOINT TENANTS.
relying on the act of 1789, (Rev. Code, ch. 31, sec. 84,.) and! it
was held that he might sustain the action, as that act did' not
affect the contract, but only extended the remedy. Palyart v.
Gouldlng, 2 Mar., 78, (133.)
2. Under the act of 1789 (Rev. Code, ch. 31, sec. 84,) the ac-
tion ma}^ be brought against both the survivor and the adminis-
trator of a deceased joint obligor. Brown v. Clary ^ 1 Hay., 107,
(125.) S. P., Davis v. Wilkinson, Ibid, 334, (383.)
3. Whether, if two be sued on a joint bond and the suit be-
abated as to one, judgment may be'; rendered against the other,^
qumre. Anony7nous, 1 Hay., 4^7, (561.)
4. The word " debts" in the act of 1789, relating to joint obli-
gations, includes judgments; therefore, the remedy upon a judg-
ment against several will survive against the personal represen-
tatives of each. Smith v. Fagan, 2 Dev., 298.
5. An action may be sustained, under the act of assembly,
against any one or more of the joint obligors in a covenant of
warranty, contained in a deed for the conveyance of land, for
breach of such covenant, the act not being confined to the pay-
ment of money merely. Grier v. Fletcher, 1 Ired., 417.
6. All contracts are several, although made by partners. NeU'
v. Childs, 10 Ired., 195.
JOIN'r TENANTS.
1. A widow and her two children were joint tenants of a slave.
By the marriage of the widow her joint tenancy was severed,
as was that between the children, by the act of 1784. (See Rev.
Code, ch. 43, sec. 2.) And in a suit in trover by one of the
children he was allowed to recover only one-third part of the
value. Witherington v. fVilliams, Tay., 134, (83,) S. C. 2 Hay.,
64, (232.)
2. Joint owners of a chattel have equal right to the possession
of it; and, therefore, the exclusive possession of the chattel by
one will not entitle the other to maintain trover against him for
it. Cole V. Terry, 2 Dev. and Bat, 252.
3. Where tliere are two part owners of a chattel, and one of
them, without the assent of the other, destroys the chattel or
renders it useless by use, the former is liable to the latter in trover
for the value of his share ; and in such case no demand is neces-
sary before bringing the action, Guyiher v. Fettijohn, 6
Ired., 388.
4. Where a joint owner of personal chattels, who is author-
ized to sell them, warrants the soundness, as he ha.s a right to
JOINT TENANTS-JUDGE'S CHAEGE-JUDGMENT-I. 791
do, and tliey turn out to be defective, and the seller pays for the
defeict without suit, he may sue another joint owner for contri-
bution according- to his interest. Davis v. Burnett^ 4 Jones, 71.
5. If one joint owner of a crop sells to the other his share of
it, to pay a debt he ow^ed him, and it is divided in the presence
of both, for the purpose of ascertaining the amount to be cred-
ited on the debt, the title passes to the purchaser, whether the
agreement for the sale Avas made before or after the division of
the crop. Warhritton v. Sacage, 4 Jones, 382.
JUDGE'S CHARGE.
See (Practice — Judge's Charge.)
JUDGMENT.
I. Of the effect of a judgment.
II. How a judgment is proved, and of
a scire facias to revive it.
HI. Of the assignment of judgments.
IV. Of the satisfaction of judgments.
V. Of judgments against executors, ad-
ministrators and heirs.
VI. Of irregular, void and erroneous
judgments.
I. OF THE EFFECT OF A JUDGMENT.
1. A judgment by default upon a bond payable in tobacco is
not a final judgment. Bell v. Bill, 1 Hay., "72, (85.)
2. A judgment binds lands from the time it is pronounced, but
it is in this wise only; it hinders the debtor from disposing of
the land himself; but if a Ji. fa. issues upon a subsequent judg-
ment and comes to the hands of the sheriff, the title of the ven-
dee under such execution is good. Hid.
3. As between creditor and creditor, it is not the first judg-
ment, but the first execution that gives the preference. Ibid.
4. Every judgment in a court of competent jurisdiction is to
be presumed fair, until the contrary is proved, and the evidence
to impeach it must be strong and convincing. Welhei^ v. Sylva,
2 Hay., 135, (303.)
5. It is only where the question between the parties has once
deen decided upon confession or verdict, that the judgment can
792 JUDGMENT— I.
be pleaded in bar of another action. Benton v. DuffeiL Con. Kep.,
98;(229.) _ i/J ^i'
6. A person is not bound by a judgment to which he is nei-
ther party nor privy. Williamson v. Smart, Conf. Rep., 146,
(268.)
7. A judgment obtained in one state is not conclusive between
the parties when sued upon in another. Peck v. JViUiamson, 1
Car. L. E., 53, (9.) Qucere I
8. An order of the county court for the sale of land, after a
constable's levy on it accompanied with a return of no chattels,
is not a judgment, though it may have the quality of one in at-
taching a lien upon the land. Boivenr. Lanier, N. C. Term, Ft.,
241, (673.) (The plaintiff in such a case may now have a judg-
ment entered in court. See Rev. Code, ch. 45, sec. 8 and 9.)
9. A judgment creates no lien upon land when a fi. fa. is sued
out. It is so upon a moiety of the land of Mdiich the debtor was
seized at the time of its rendition, if the creditor sue out an ele^
git ; but if he elect to sue out a fi. fa., the lands are bound oidy
as chattels. Jo)ies v. Edmunds, 3 IMurpli , 43. (The stat. of
West. 2nd, which gave the writ of elegit, was re-enacted|in the
Rev. Stat., ch. 45, sec. 3, but is omitted in the Rev. Code. See
ch. 45.)
10. After a judgment in favor of A, but before he sued out ex-
ecution (or the teste of the execution) the debtor conveyed his
lands in trust to secure a debt which he owed to B, it was held
that the debt to B must be satisfied before the execution. Ihid.
11. A state court cannot, upon a record of the circuit court of
the United States offered in evidence, inquire into the fact, wheth
er the judgment of the circuit couit was regularly entered up, or
whether tlie subsequent proceedings thereon were regular. Pigot
V. Davis, 3 Hawks, 25.
12. The judgment of discharge of a court of exclusive juris-
diction, on the petition of an insolvent, until reversed for error or
quashed, is conclusive evidence of the discharge, and its regu-
larity cannot be questioned incidentally. Jordan v. James, 3
Hawks, 110.
13. After a judgment by default has been set aside, another
court cannot enquire collaterally, whether it was set aside prop-
erly or not. Bender v. Askew, 3 Dev., 149.
14 In this state, when no judgment is formally entered on a
verdict, which, connected with the pleadings, authorizes a judg-
ment, the court is bound to intend such a judgment as ought to
have been rendered. Barnard v. Etlieridge, 4 Dev. 295.
15. Judgments of a court of record, on whatever day of the
term they may be rendered in law, relate to, and are considered
judgments of, the first day of the term ; and this rule applies,
although the judgments were confessed upon writs which were
noted by the clerk to have been issued, and the service of which
JUDGMENT— I. 793
"was acknowledged, on a day subsequent to the first day of the
term ; and executions issued upon such last mentioned judg-
ments will have priority over a deed in trust, proved and regis-
tered on the second dav of the same term. Marleyv. Lea, 4I)ev.
and Bat., 1()9.
16. A judgment by confession is valid without any previous
process. Ibid.
17. Where a testator died in term time, before a judgment was
signed, it teas held that it might be signed after, and execution
taken out against his goods in the hands of his executor, tested
the first day of the term, for they relate to, and are considered
as a judgment and execution of, the first day of the term, at
which day the testator was alive. Ibid.
18. A person may confess a judgment, or recognizance on
record, to the State for a sum of money, as well as to an individ-
ual. Therefore, where A was convicted on an indictment and
fined, and ordered into the custody of the sheriff, and B, in con-
sideration that A should be discharged from custody, confessed
a judgment to the State for the fine and costs, it loas held that
the judgment could not afterwards be set aside. State v. Lane,
1 Ired.,' 2(U.
19. An entry in a suit, " dismissed at the costs of the de-
fendant," is not to be construed as -a retraxit, or a judgment upon
the merits, so as to bar another action for the same cause. It is
simply a judgment of discontinuance, where the court erred in
ordering the defendant to pay the costs, or where such order
was made by the consent of the parties. Bond v. McNider, 3
Ired., 440.
20. No judgment, but one on a retraxit or on the merits, will
bar a subsequent action. Lhid.
21. Akhough a warrant may have been filled up by a con-
stable alter the magistrate signed it, and this may be improper,
yet tlie judgment regularly rendered thereon cannot, if at all,
be collaterally impeached, as being void, f(U" such defect in the
leading process. Hafner v. Irwin, 4 Ired., 529.
22. A judgment of dismission is a proceeding unknown in
courts of common law jurisdiction. Morgan v. Allen, 5 Ired., 156.
23. A judgment or decree pronounced in any state, against an
inhaljitant of another state, upon whom process in the suit has
not been served, is only binding in the' state in which such
judgment or decree has been rendered. Davidson v. Sharpe, 6
Ired., 14.
24. Where an award has been made by referees under a rule
of court, and confirmed by the court, it is binding on all parties,
and while it remains unreversed the judgment cannot be con-
tradicted. Anders v. Anders, 9 Ired., 214.
25. Where a judgment is confessed upon terms which are
duly entered, it is in efiect a conditional judgment, and the
794 JUDGMENT— I-II-III,
court will take notice of the term-B and enforce tliem. Wood v.
BagleT/^, 12 Ired., 83.
26. The entry of "compromised" in a suit, does not, ex vi
iermini, import that it was settled and decided, and a judgment
given oji its merits, but it is open to extrinsic proof as to what
was the full agreement of the parties in relation thereto. Idding
V. Hiatf, (3 Jones, 402.
27. A judgment in favor of "Lash & Moore/' trading as a
firm, is valid, and is admissible in evidence in a suit brought on
it by the members of the firm in their individual names set out
in full, and adding that they were trading under the name and
style of "Lash & Moore." Las i v. Arnold, 8 Jones, 206.
See (Literest, 13.) (Joint Obligations, 4.)
II. HOW A JUDGMENT IS PROVED, AND A SCI. FA. TO REVIVE ONE.
1. The only legal proof of a judgment, is by the production
of the formal entry of it, but minutes made during the progress
of a cause, if received without objection to their form, are suffi-
cient proof of the judgment, if from them a formal entry can be
made up. Gibson v. Parfee, 2 Dev. and Bat., 530.
2. Matter, wliich might have been well pleaded to the original
action, cannot be heard as a defence to a sci. fa. brought to
revive the judgment rendered in that action. Ferebee v. Doxey,
6 Ired., 448.
3. To support the declaraticm in an action of debt on a judg-
ment, the exemplification of the judgment itself must be pro-
duced, it is not sufficient to show a sa. /a. to show cause why
execution on the judment should not issue, and an award of exe-
cution according to the sci. fa. Fitch v. Porter, 8 Ired., 511.
4. Where there is a dormant judgment, the plaintiff may have
a sci. fa. to revive, and an action of debt to recover the amount
of the judgment, both pending at the same time, and a judgment
on the sci. fa. cannot be pleaded in bar of the action of debt..
Carter V. Caiman, 12 L-ed., 274.
See (Literest 5-13.) (Set off, 7.)
III. OF THE ASSIGNMENT OF JUDGMENTS..
1. A judgment, strii-tly speaking, is not negotiable, yet it may
be de facto assigned, and the law will so far taice notice of the
assignment, as to protect it against the act of the assignor.
Smith V. Poivell, 1 Hay,, 452, (520,) S. P., McDaniel v. Tate,
Ibid, in the note.
2. Where A pays to the shenff the amount of an execution
in his hands, against C, in favor of B, if B afterwards as-
sign his interest in the judment to A, such payment shall be
deemed a purchase, and not a satisfaction of B's claim. Carter
V. Sheriff of Halifax, 1 Hawks., 483.
JUDGMENT— III-IV. 795»
3. Money advanced by a stranger for the purchase of a judg-
ment is not a satisfaction of it, and the assignee has a right to
receive the money thereon, and in case of the default of the
sheriff, to maintain an action against him in the name of the
assignor. Governor v. Griffin, 2 Dev., 352, S. P. Foster v. Frost,
4 Dev., 424
4. An assignment of a judgment to- one of the parties against
whom it has been obtained is a satisfaction ; and if it were in-
tended to liave been kept on foot, it ought to have been assigned
to a stranger to the judgment. Sherwood v. Collier, 3 Dev., 380.
5. An assignmeni; of a judgment is utterly void at law, and
cannot be noticed in a court of law. Ferebee v. Doxeiu 6 Ired.^
446.
6. Where nioney was paid to the plaintiff in an execution hj
a surety, on an understanding that the judgment was to be as-
signed to a third person, for the benefit of "the surety, and such
assignment was cif't<'ricards made, it was held that this was not a
payment of the judgment, but that it might be enforced against
the principal, in the name of the plaintiff, for the benefit of the
surety. Barriiujer v. Boy den, 7 Jones, 187.
See (Judgment — Of the satisfaction of judgments, 10.)
IV. OF THE satisfaction; of judgments.
1. The return oi satisfaction to a/?, fa. issuing on a judg-
ment, is conclu«ive upon a sci. fa. to revive such judgment;
and the only way in which such return can be got rid of, is by
an application to the court to amend it. Snead v. Bhodes, 2
Dev. and Bat, 386.
2. A judgment confessed to a married woman, as if she were
single, comes within the operation of the act of 1826, prescrib-
ing the time within which the presumption of payment or satis-
faction on ^jridgments shall arise, notwithstanding the coverture,
and although the sci. fa. to revive the judgment is sued out in
the name of the husband and wife. Jc/mson v. England, 4 Dev.
and Bat., 70. (See Rev. Code, ch. 65, sec. 18,)
3. The entry of satisfaction of a judgment on the record is
evidence to a jury, from which they may infer that the judg-
ment has been paid ; but, per se, it only imports a release of the
judgment, and it may be shown by extrinsic evidence that the
judgment was not in fact paid. Eei/noldsv. Magness, 2 Ired., 26.
4._ The commissioners of Newborn recovered a judgment
against the sheriff and his sureties for the amount of the taxes
due to the town, which he had collected and failed to pay over.
Afterwards one of the sureties had the money paid and an assign-
ment of the judgment made to a third person, by the attorney of
the commissioners, which was afterwards ratified by the commis-
796 JUDGMENT— IV.
sioners, and a receipt was given by the treasurer of the boaTd
to the sheriff, to enable him to renew his bonds. It ivas heldr
first, that the pa_yment of tiib money, and the assignment to a
third person of the judgment, did not amount in kxw to a pay-
ment and satisfaction of the judgment, as against the defend-
ants tlierein; and, secondly, that, although the receipt may
have operated as a fraud upon the court, yet it was not conclu-
sive as to the fact of payment by the defendants in the judg-
ment, but might be explained. Commissioners of Newhern v,
DaiVHon^ 10 Ired., 436.
5. Under tlie act of 1826, the presumption of the payment or
satisfactitm of a judgment does not arise until ten years after
the plaintiff has ceased to prosecute his judgment, that is, until
ten years after the day of the return of his last execution. Butts
V. Patfon, 11 Ired., 262. (See Kev. Code, ch. 65, sec. 18.)
6. Where A, a defendant in an execution, placed funds in the
hands of the sheriff for the satisfaction of the execution, and the
sheriff entered on it " satisfied," but before he made his return
another arrangement was made between him and A, and the
funds were withdrawn and applied by A to another purpose,
upon which the sheriff struck out the entry of satisfaction, it ivas
held that when sued upon the judgment on which this execution
issued, A coidd not avail himself of this arrangement with the
sheriff in support of a plea of payment, and that tlie plaintiff^,
though he might proceed against the sheriff, yet had not lost hi&
remedy upon the judgment. Tarhnton v. Ginfther, 13 Ired., 100.
7. Where, in reply to the alleged presumption of the payment
of a judgment arising from the lapse of eleven years, it was
proved that for seven years of that time the defendant was to-
tally insolvent, but for the last four years of it, he was able to
pay, it ivas held that the presumption was repelled. Woodbury;
V. Taylor^ 3 Jones, 50-4.
8. What Avill repel the presumption of payment, arising from
the lapse of time, is a question of law, which it is error in the
court to submit to the jury, though should the jury decide the
question correctly, it would prevent the awarding of a venire de
novo. Ibid.
9. One joint principal, who pays the amount of a judgment
against him and the other principal, has no equity to be subro-
gated to the rights of the creditor; so that satisftiction of the
judgment made by him cannot be regarded otherwise than as a
payment. Lowe v. Felt on, 7 Jones, 216.
10. The parol assignment of a judgment constitutes the as-
signee an ageut for the plaintiff to receive jiayment, and a pay-
ment to him will discharge the judgment. Bartlett v. Yates, 7
Jones, 615.
See (Evidence — Presumption, 6.) (Set-off, 7.) (Sheriff — Lia-
JUDGMENT— IV-V-YI. 797
Ijility as bail, 8.) (Sheriff — When the defendant in the process is
sheriflf, and of successive sheriff's, 7.) (Surety and Principal 6-
7-22.)
V. OF JUDGMENTS AGAIXST EXECUTORS, ADMINISTRATORS AND HEIRS.
1. In a sri./a. against heirs to subject the lands of the deceased
to his creditors, the proper judgment is against lands descended
in their hands, although they do not point out such lands.
Spaujht V. Wade, 2 Murph., 21)o, S. C. 1 Car. L. K. 285, (29.)
2. Where, upon a petition in the county court by the next of
kin against the administrator and one of the next of kin (who
was alleged to have been fully advanced) for a settlement and
distribution of the estate, and which was subsequently taken to
the superior court by a writ oi certioror'u and in that court the suit
hy the petitioners was settled and disposed of, and by consent it
was referred to arbitrator to determine whether the other next
of kin had been fully advanced, and they returned an award in
his favor, upon which the administrator permitted, without ob-
jection^ a judgment to be entered against him for the amount;
if teas held that the judgment was in effect a confession of a
judgment by the administrator in favor of his co-defendant, and
was subslantially just, though he was a defendant instead of being
a petitioner; and as a sn. fa. had been issue t on the judgment,
the executors of the administratoi-, who had died, might enter any
substantial plea to protect them in their representative char-
a(^ter. Dozicrv. Simmon.^, 4 Hawks, 2(3.
3. If it appear upon the whole record, that the demand of the
plaintiff is against the defendant in his representative character,
a judgment against the latter personally will be reversed as
erroneous. Sltearin v. NeviJJp. 1 Dev. and Bat., 3.
4. Where, on a warrant against an administrator for debt, the
justice, before whom it was returned, made the following entry,
"judment confessed to the officer by the administrator for the
sum of, &c.," which the justice signed, it loas held that this was
a valid judgment against the administrator. B.oolcs v. Moses, 8
Ired.. 8k
5. In an action on a justice's judgment against an adminis-
trator, the defendant cannot plead jjJene adminidraint, being
fixed with assets l)y the judgment. Ibkl.
See (Ju'lgment — Of irregular, void and erroneous judgments,
37-38.)
VI. IRREGULAR, VOID AND ERRONEOUS JUDGMENTS.
1. Ill a writ of false judgment brought to reverse the judc^-
ment of a justice, and a sci. fa. to the defendant to come in and
show cause against it, he did not appear, and the court, finding
798 JTIOGMENT-^VI.
the matters a'ssigned for error were matters of fact, reA*ersecl tlie
judgment. Anonymous^ 1 Hay., 398, (458.)
2. Reasons in arrest of.jnd^-ment cannot be filed, without per-
mission of the court on hearing the reasons. Quoere. Long v,
no.ker, 2 Hay., 128, (291.)
3. The superior court cannot reverse one of its judgments for
'error in a matter of law; but if it be absolutely void, or taken
irregularly against the. known rules of the court, it may be set
aside at any time, on motion. Anonymous^ 2 Hav., 73, (240.)
S. C. Tay., 146, (91.) _S. P. Bevang v. ■ , 2 Hay*; 239, (424.)
4. A judgment confessed in vocation, and then entered on
record by consent as of the preceding term, is void, and cannot
be made valid by any subsequent act of the defendant. Slo-
cunih V. Anderson, 1 €ar. L. E., 466, (77.)
5. A judgment confessed before the clerk, when there is no
court, is irregular, and will be set aside on motion. The rendi-
tion of a judgment is a judicial act, to be done only by a court.
MaUheios v. ''Moore, 2 Murph .181.
6. A judgment given by a justice of the peace, from which an
appeal has loeen prayed and granted, remains no longer a judg-
ment, and cannot be sued on as such. Marshall v. Lester^ 2
Murph., 227, S. C. 1 Car. L. E., 100, (13.)
7. Where, to sci. fa. against defendant as bail, he pleaded cer-
tain pleas, and judgment was rendered against him, but, upon
appeal to the superior court, it did not appear on tlie record how
the pleas had been disposed of, a judgment of that court against
the defendant was held to be erroneous. Neshiit v. BaUeiv, 3
Hawks, 57.
8 A judgment against the defendant named in the writ, ]d\\i
not made a party, either by service, public notice, or attaching
his estate, is merely void, and should be disregarded when pro-
duced, on mil tiel recoid. Armstrong v. Harahaic, 1 Dev., 187.
9. A judgment nunc pro tunc is not erroneous, although it ap-
pears that it should have been as of the prest term. Arrmgton
v. Bass, 3 Dev., 95.
10. Judgments by default, signed by the attorney, without an
actual {uljudication by the court, may be set aside at any time,
even after the term at which thev are entered. Bender v. AsJcew,
3 Dev., 149.
11. A judgment by nil dlcit, against an infant heir, is not void,
but only erroneous. Ihkl S. P. White v. Albertson, 3 Dev., 241.
12. Where a judgment was rendered against an infant heir,
upon process issuing against his guardian, who appeared for tlie
iiifant, this appearance, although irregular, is taken to have been
sanctioned by the court. White v. Albertson, 3 Dev., 341.
13. A judgment is void, when rendered contrary to the course
of the court, but if improperly rendered against a party, when it
should have been in his favour, it is only erroneous. Ibid.
JUDGMENT^VL 799
14. A judgment cannot be collaterally impeached for error if
Tendered according to the course of the court, it being valid un-
til reversed, however erroneous it may be. Ibid. S. P., Wil-
Hams V. Woodhovse, 3 Dev., 257.
15. The superior court may, b}' writ of error, reverse the judg-
ments of a county court, but cannot in any way quash them, or
supersede theui as nullities. Sicaim v. Fentress, 4 Dev., MOl.
] (i. An irregular judgment does not justify the plaintiff in any
of the acts done under it, provided it be set aside, although ft
does the officer; and a stranger gets a good title, even if it be
set aside. It is the same as to the party when set aside as if it
had never been. Skinner v. 3Joore, 2 Dev. and Bat., 138.
17. A judgment is not irregular because it is erroneous. Er-
ror does not constitute irregularity, nor does it necessarily enter
into it. An irregular judgment is one entered contrary to the
course, the practice, of the court, as out of term time, &c. If it
appear upon the record entirely free from error, yet the court by
which it purports to have been pronounced may set it aside for
the irregularity ; but no other court can, except in an appellate
capacity. Ilnd.
18. The principle that the judgment of a court of record is
conclusive, until it is set aside or reversed, applies to all courts
to which a writ of error runs from a higher com-t, or from which
an appeal lies to a higher court, which proceeds according to the
course of the common law, because those are adequate remedies
for any error. As to inferior tribunals, or those having a special
or pecular jurisdiction, it is otherwise. Their improper acts may,
in some instances, bo^i-estrained in their progress by prohibitory
writs from a court orgeneral superintending powers; or, in oth-
ers, may be corrected by having their proceedings brought up
by certiorari and quashe<l; and in yai others may be questioned
by plea. Ihid.
19. It seems to be a necessary function of every court, and
particularly of a court of the highest jurisdiction to which no
writ of error lies, as our superior courts, to set aside an irregular
judgment, that is, one rendered contrary to the course and prac-
tice of the court, at a subsequent term, provided application for
that purpose be made in proper time. Winslotv v. Andersov, 3
Dev. and Bat., 9.
20. In general, judgments taken without service of process,
signed out of term, or by default before the proper period of the
term, are irregular. Ihid.
21. If a judgment by default, interlocutory or final, be signed
according to the course of the court, then it is the judge's judg-
ment, because it is entered according to his directions. And
although the former is always under the control of the court,
yet, from its nature, the court ought not to interfere with the
800 JUDGMENT— VI.
latter, that is, a final judgment, after the term at which it is
taken. Ibid.
22. Until set aside, an irregnlar judgment must in general be
regarded as a subsisting and regular judgment, as to all the
world. Hid.
23. An entry, upon the rendition of a verdict in favor of the
plaintiff, that "the defendant is entitled to a credit to be as-
certained by JM. F. and J. H. S., and the clerk is then author-
ized to enter a remiititar, judgment of the court accordingly and
for costs," is not a judgment tJien rendered, but an agreement
for a judgment to be rendered subsequently upon the ascertain-
ment, by the referees, of the credit to which the defendant is
entitled. iJcnvris v. JJafcheJor, 3 Dev. and Bat., 52.
24. A judgment, regularly entered at o-ne term of a court, can-
not be set aside by the court at a subsequent term. Ibid.
25. Upon a conviction for a criminal offence, it is irregular to
annex to the sentence any condition for its subsequent remission,
A judgment, though pronounced by the judge, is not his sen-
tence, but tlie sentence of the law. It is the certain and final
conclusion of the law following upon ascertained premises, and
nmst, tlierefore, be unconditional. Stale v. Bennett, 4 Dev. and
Bat., 43.
20. In cases where the law gives to the judges a discretion
over the quantum of punishment, they may, with propriety, sus-
pend the sentence for the avowed purpose of affording to the
convicted an opportimity to make restitution to the person
peculiarly aggrieved by his offence, or to redress its mischievous
public consequences, and when judgment is to be pronounced,
the use which has been made of such opportunity is very proper
to be considered by the court in the exercise of that discretion.
Ibid.
27. It is only in actions brought upon contracts., that the court
<'an render judgment for interest on the amount found by the
jury. In other cases such a judgment is erroneous, b'atterivhiie
V. Camon, 3 lied., 549.
28. Though there be but one judgment in the superior court,
yet where it consists of several distinct and independent parts,
it may be reversed in tlie supreme court as to the part wherein
it is erroneous, and affirmed for the remainder. Ibid.
29. A joint judgment was obtained before a justice against A
and B, from which A appealed to the county court, and gave C
as surety for the appeal; and at the June term, 1843, judgment
was entered against B, and against G the surety, both A and B
having appeared and pleaded in the county court. This judg-
ment was on motion at December term, 1843, vacated; and the
plaintiff appealed from the order to the superior court, which
court dismissed the appeal, on the ground tliat there was no er-
ror ill the judgment of the county court at tlie December term
JUDGMENT— Vr. 801
T843, t7 ivas held, 1st, that the appeal from the justice took up
all the proceedings to the county court; for the judgment being
joint, one half of it could not be vacated, and the other half left
valid in the justice's court; secondly, that the county court had
no power to reverse a judgment rendei-ed at the preceding term.
Ramsovr v. Roper, 7 I red., 34(3.
30. K judgment may be vacated at any time, on motion, in
the same court in which it was rendered, upon parol proof that
it was entered irregularly and not according to the course of the
court; as, for instance, where the defendant in the cause was an
infant, and no guardian had been appointed to represent his in-
terest. Kcaton v. Banks, 10 Ired., 381.
31. Where an action was brought in the name of J. Brooks,
W. E. Colton and W. E. Churchill, partners ti'ading under the
name and firm of " Bi'ooks. Colton & Co.," and the judgment
was in the name of " Brook;^, Colton & Co.," itivas held that this
was a variance for which, at common law, the judgment might
have been reversed, but that the error was cured by our statute
of amendments. Brooks v. Batdiff, 11 Ired., 321. (See Rev.
Code, ch. 3. sec. 5.)
32. Judgments taken without the intervention of the court,,
as of course, ave from necessity always under the conti-ol of the-
court, wliose judgments they purport to be, and of an appellate
court ^\hich can treat the matter de novo Wdliants v. Beasltv,.
13 Ired., 112.
33. A judgment against an infant, appearing by attorney,, i.s
valid, until reversed upon a writ of error. Kar su all \^.. Fisher,
1 Jones, 111.
44. Mere office judgments, such as one taken msfaw/'e*" upon a
bond for the appearance of an insolvent debtor,, are under the
control of the court, and may be modified or set aside, upon suf-
ficent cause shown, at a succeeding term of the court. PoueU
v. Juplina, 2 Jones, 400.
35. A judgment exceeding the sum demanded in the writ is
erroneous, but not void; and its A'alidity cannot be questioned
collaterally. Savage v. Hussey, 3 Jones, 149.
3<>. A judgment entered against a person who was not served
with process, or in any way notiiied, and who did not aj pear, is
void, and no suit can be brought on it. StaUviys v. Gidly, 3
Jones, 344.
37. Where a warrant has been brought against an adminis-
trator for the debt of his intestate, and the justice, beibre \a lioni
it is returned, renders a jutlgment against him in his individual
(••apacity, it is error, for which a record ri m the nature of a writ
(4" false judgment is a pnp.-r remedy. Hare v. Parham, 4
Jones, 412.
38, In a case- like the above, the general rule is for the supe-
rior court simply to revene the false judgment; but under the
9*
802 JUDGMENT VI— JURISDICTION— I-IL
provisions of the act of 1828, Eev. Code, ch. 46, sees. 34 and 35,
relative to warrants against executors and administrators, the
superior court should, besides reversing the false judgment, en-
ter a judgment in favor of the plaintiff, ascertaining his debt, and
then permit the defendant to make any defence he can by plea
relative to the assets. Ibid.
39. A judgment rendered against the principal and surety in
an insolvent debtor's bond, when both were absent from court on
account of sickness, is not irregular and void, and cannot be va-
cate-d on motion. Osborne v. Toomer, 6 Jones, 440.
40. Ciei-ks, during the term of the court, can only make short
minutes, from which they must make out a more formal record
afterwards, in vacation, and they are at liberty then to draw up
all judgments and orders in proper form. Ibid.
See (Judgment — Of judgments against executors, administra-
tors and heirs, 3.) (Trespass — To persons and personal proper-
ty, when it will lie, 12.)
JURISDICTION.
I. Jurisdiction of justices of the peace. [ III. Jurisdiction of tlie court of equity in
II, Jurisdiction of the county and supe- selling infant's property.
rior courts. , j IV. Jurisdiction ot the supreme court.
I. OF JUSTICES OF THE PKACE.
See (Justices of the peace— Of their jurisdiction, judgment and
execution. )
H. OP THE COUNTY AND SUPERIOR COURTS.
1. The consent or admissions of a party cannot give to a court
jurisdiction of a subject mattei-, not conferred upon it by laAv.
State V. Roberts, 1 Hay., 176, (201,) S. P. Wagoner v. Grove, Cont
Rep., 516, (563.)
2. In the superior court, under the act of 1777, if tlie sum
recovered were less than £50, nonsuit should be entered.
McNid V. West, 2 Hay., 51, (211.)
3. Under the act which fixed the jurisdiction of the county
courts at £20, the defendant should have pleaded that the sum
due was less than £20 when the action was commenced, other-
wise tlie court will not on motion, after a verdict for less than
£20, set aside the verdict and enter a nonsuit. Anonijmom, 2
JURISDICTlON^-ir. 803
na:y^ 71, (238 ) S P i?roo;^'5 V. CoUins, Taj., 236, (103,) S. C.
Conf. Rep., 345, (42o.)
4. The county court, under the £20 jurisdiction act, will not
order a nonsuit, if the sum be reduced under £20 by a set off.
Otherwise if by payment. Anonymous, 2 Hay., 115. (275.)
5. The legislature of the State cannot define and give our
courts jurisdiction of crimes committed in another state or
country. State v. Knhjht, Tay, 65, (44,) S. C, 2 Hay., 109, (267 )
G. If the nominal plaintiff reside out of the State, the defen-
dant may be sued out of his own district, if the real plaintii!
be an inhabitant of the district in which he sues. Anomimons
Tay., 150, (94.) J ■
7. The civil divisions of the State into counties, e*cc., must be
taken notice of judicially by the courts. State v. Glasc/ow, Conf
Rep., 3S, (176.) ^ '
8. W hile the law was that all indictments for assaults, bat-
teries, &c., should originate in the county courts, and an indict-
ment was found m the superior court charging an assault with
intent to murder, and the jury found the defendant guilty of a
simple assault only, it ivas held that ' the superior court had
jurisdiction. State v. Campton, Conf Rep , 67, (200.)
9. Where an action is brought for the hire of a slave and the
jury assess damages at less than £30, the plaintiff must be non-
suited. WiJhains V. Hotcombe, 1 Car. L. R., 365, (33.) (See Rev.
Code, ch. 31, sec. 38.) ^ ^ '
10 To a plea in abatement to the jurisdiction, that the plain-
tiff of record had not sued in his proper district, it is a good re-
plication tor the plaintiff, that the person having the beneficial
interest m the suit resided in the proper district to give the
court junsdictKm. B V v. BeJl, 1 ^lurph., 95.
11. Tlie superior court of one county had no jurisdiction of
otiences committed in another county, although both belonged
to the same judicial district. (This was before the act of 1806,
by which the district system was abolished.) State v. Patterson,
1 Murph., 443.
_ 12. A plea in abatement to the jurisdiction, "that the matter
111 contest" was not of the value of £50, in an action against
defendant for neghgently keeping his ferry, &c., cannot be sus-
tained under the act of 1793, which mentioned "debt or de-
mand,;'and not "the matter in contest" in an action ex delicto,
111 which it cannot be said before verdict what the damao-es will
be. MrGdt.ee v. Draughon, 2 Car. L. R., 260, (240.) ^
13. The purchasers of the distributive shares of next of kin,
for a valuable consideration, may proceed against the personal
representatives of the deceased by petition in the county court
under the act of 1762, in their own names. And the next of
km, as wel as the personal representatives, are precluded from
aisputmg the valual^le consideration acknowledged by the deed
80-i JURISDICTION— IT.
to have been paid. Wright v. Lotve, 2 Murph., 354. (See Rev.
Code, ch. 64, sec. 7.)
14. Objections to the jurisdiction of the superior courts must
in general be pleaded in abatement; and they can be taken on
the general issue only in cases where the action is in its nature
local, as relating to the possession of land, or where a court has
no jurisdiction at common law, or wdiere no court of the State
has jurisdiction, or where it has been taken away by statute,
without prescribing the manner in which the objection shall be
taken, and in eases of the like sort. Green v. Mangum, 3
Murph.", 39.
15. A plea to the jurisdiction of the superior court, that the
person then holding the term as a judg-e had not been constitu-
tionally appointed, cannot be sustained, because it involves the
alisurdity of calling on a person to decide that he is not a judge,
when he can make no decision at all unless he be a judge.
Beard Y. Cameron, 3 Mm-ph., 181.
1(). Some actions of a. local nature, and some of a transitory
kind, must be brought where the cause of action arose; but
with these specified exceptions, no action can be brought in a
county in which neither party resides. Yadkin Navigation Coi/i-
pany v. Benton, 1 Hawks., 422.
l'7. Where a suit is commenced in the county cmii't, and re-
moved by consent into the superior court, such removal is good,
provided the suit be one of which the superior court may enter-
tain jurisdiction. JVeM v. Kittrc'l, 1 Hawks., 493.
18. in debt on bond for less than $100, since the act of 1820
increasing the jurisdiction of justices, advantage can betaken
of the want of jurisdiction by plea in abatement only. tS'iep-
j)ard Y, Briggs, 2 Hawks., 369. (The law is now altered; see
Rev. Code, ch. 31, sec. 38.)
19. A general jurisdiction is not ousted except by plain words,
or a necessary implication, and, notwithstanding the act giving
a justice jurisdiction in cases where the debt and interest exceed
one huncired dollars, and the act authorizing the court to dis-
miss a suit for leSvS, yet, as there are no w^ords in those acts oust-
ing the jurisdiction of the superior courts in cases of one hundred
dollars and interest, it remains. Griffin v. hig, 3 Dev., 358. (See
Rev. Code, ch. 31, sec. 38 and ch. (y2, sec. 6.)
20. The agreement of parties cannot bestoAv on a court a)i au-
thority to decide a case, on any other principles than those pre-
scrii)ed by law for its decision. Fagan v. Jacochs, 4 Dev., 263.
21. An action on a sheriff's l.iond, in the name of the State for
the> use of an injured jtiirty, may be brought in the superior court
of the county in which tlie relator resides, though all the defen-
dants reside in a different county. Slate v. Mr Gee, 2 Ircd., 209.
(See Rev. Code, ch. 31, sec. 37.)
22. The superior court has jurisdiction of an action founded
JURISDICTIOX— n. 805
on two notes amounting together, principal and interest, to one
hundred dollars or more, but neither of which alone amounts to
that sum. iVcCasfen r. Qnirni, 4 Ired., 43
23 Under an act passed in 1842, establishmg the county of
Union, an indictment against citizens of Union, pending m An-
son superior court at the tall term, 1843, should have been tmns-
ferred to the superior court of Union though the place where
the offence was committed was still m Anson, i^tate v. Hart, 4
Ired , 222.
24 It must appear upon the records of eveiy county court,
that at least three justices were present to constitute and hold
the court, as a less number is not competent to constitute a.
court But if it appear that three justices opened the couit, it
will be intended that they continued to hold it notwithstanding
the adjournment, unless others be specially named as being pres-
ent on subse pent davs of the term. State v. Kiiif/, 5 Ired,, 203.
25 In an action of assumpsit for goods sold and delivered, the
damages were laid at $200, and the evidence m support of it
was an instrument in the following words: '-Received 1500
(hundred) weight of bacon at 6 cents, and 128 fts. of lard — \Vm
Taber;" and the back was endorsed "credit $3(1" The jury found
a verdict for $76; and it was held that the instrument was neither
a promissory note nor a liquidated account, and therefore the
ca^e did not come within the act of 1826, which prohibited the
courts from taking pirisdiction of any sum less than $100 due by
bond, note or hquidated account; and if this were not so,_yetthe
court could not dismiss the suit on motion, as the action Avas
commenced for more than $100, which would make a plea in
abatement the proper remedy. Newman v. Tahor, 5 Ired., 231.
(See Rev. Code, ch. 31, sec. 38.)
26. The State can bring an action m the superior court, on a
l)ond payable to herself, for a less sura than one hundred dollars;
for general stcttutes do not bind the sovereign unless expressly
mentioned in them State v. Garland^ 7 Ired., 48.
27. ApUruitiff in an action of assumpsit cannot be nonsuited,
though the verdict of the jury is for less than $(50, if he file an
affidavit in the words of the act "that the sum for which his
suit is brought, (being over $60,) is really due, but ^for want of
proof he cannot make recovery." BrooMdre v. BrooMnre, 8
Ired., 74. (See Rev. Code, ch. 31, sees. 37 and 38, which do not
continue the provision contained in the 42d section of the 31st
chapter of the Rev. Stat., but substitute a plea in abatement
instead of it.)
28. Where a court consists of more than two members, a ma-
jority is competent to do all the business, which the court can
do where all the members are present, unless the legislature
.otherwise direct. State v. Woodside, 8 Ired., 104.
29. Where the priiicipal «um in a promissory note is under one
806 JUEISDICTIOM— IL
hundred dollars, but the interest accrued makes the whole sum
due on the note upwards of one hundred dollars, the county-
court has jurisdiction of a suit brought on it. Birch v. Hoivell,
8 Ired., 468. (See Rev. Code, ch. 31, sec. 38.)
30. Under the acts establishing the county of Polk, connected
with the general act on the subject ol jurisdiction, a citizen of
the county of Polk has no right to institute ^a suit in the superior
court of Eutherford county against another citizen of Po1k, and
on plea, such a suit must be dismissed. Allen v. Blills, 8 Ired.,
473.
31. Notwithstanding the act of 1844, ch. 12, declares that
there shall be no jury trials in the county court of Buncombe,
yet that county court still retains its original jurisdiction in
bastardy cases, and if the defendant tender an issue, the case
must be removed to the superior court by certiorari^ that the
issue may be there tried. State v. Sluder, 8 Ired., 487.
32. The provisions of the 42d section of 31st chapter of the
Revised Statutes apply to suits in the superior court of Cleve-
land county, removed, under the private acts of 1844 and 184G,
fi-om the county to the superior court of that county^ Parham
V. Hardin, 11 Ired., 219. (See Ptev. Code, ch. 31, sec. 37.)
33. Under the act of 1848, relating to the county of Polk, all
the records transferred to the superior court of Polk from the
county of Rutherford are directed to be returned to the superior
court of Rutherford county, the act of 1846 establishing the
superior courts of Polk having been repealed by the act of 1848,
and it teas held that the superior court of Rutherford' had the
power to issue an execution on a judgment, rendered in the
county of Polk while it had jurisdiction, as to cases from the
former county, removed bv the act of 1846, and re-transferred
by the act of 1848. 3Iatthews v. Gdreath, 11 Ired., 244.
34. Where a petition had been hied in the county court by
the next of kin of an intestate for the sale of negroes, for the
purpose of distribution, and a sale had been made by a commis-
sioner appointed by the court, according to the prayer of the
petitioners, and he had paid over to them what he alleged to be
their full respective shares, it is not competent for the petitioners
to file a subsequent original petition in the same court, charging
that the commissioner had not paid them their full shares, (they
having signed a receipt in full by mistake,) and requiring, the
commissioner to account, &c., and to pay over the balance, &c.
Their relief could only be obtained by an application to the
county court for a rehearing, if the proceeding of the commis-
sioner had beeii confirmed, or by recourse to a court of equity
to set aside tliC' receipt, if given through a mistake.. Beid v.
Pass, 11 Ired., 589.
35. When it appears from the record, that a cause was tried
at a special terra of the superior couxt,, it is: to be- presumed,
JUKISDICTION— II. 807
prima facie, that an order for holding- it was duly made, and that
it was duly held. Sparhnan v. BaugJdn/, 13 Ired., 168.
36. The true meaning and import of the act, Rev. Stat., ch.
31, sees. 40 and 42, are that if the jury shall find a less sum than
$60 to be due to the plaintiff, he shall not be nonsuited, if he shall
show by affidavit that the sum, for Avhich the suit is brought, is
really clue, "but for want of proof, or that the time limited for
the recovery of any article bars a recovery," or that for some
other cause of a like kind the verdict was for so small a sum, so
as to show that the suit was commenced in the superior court in
good faith, and not for the purpose of evading the operation of
the act; the verdict being held to he only prima facie evidence
of an intent to make such an evasion. As, for instance, where
the plaintiff fairly thougiit he was entitled to interest, but the
jury would not allow it. Johnston v. Francis, 13 Ired., 465.
37. A action may be maintained in any one of the counties
of this state, when both plaintiff" and defendant are citizens
of other states. Miller v. Blacli, 2 Jones, 341, S. P. Walters v.
Breeder, 3 Jones, 64.
38. Whei-e a payment had been made on a note,, which was
originally for more than $100, which payment reduced it below
that sum, but was not endorsed on the note, nor known to the
plaintiff, who was assignee of the note, when the suit was
brought, it was held that, altliough the note was overdue when
the assignment was made, the superior court had jurisdiction of
the cause, and the plaintiff" could not be nonsuited under the act.
Bean v. Baxter, 2 Jones. 356. (The act is somewhat altered.
See Rev. Code, ch. 31, sees. 37 and 38.)
> 39.^ The act, Rev. Code, ch. 31, sec. 37, providing a venue for
transitory actions, makes no provision for tlie case of a resident
plaintiff and a non-resident defendant, and it was lielcl, therefore,
that the case remains as at the common law, which allows the
plaintiff' to sue in any county, subject to the poAver of the court
to change the venue according to certain rules governing its
course. Covill v. Moffitt, 7 Jones, 381.
40. As a corporation has no actual residence, it may be sued in
the counT;y court of any county in the State, in which the plaintiff
resides. Morehead, v. Atlantic a^id North Carolina Bailroad
Conqjoiiy, 7 Jones, 500.
41. The acts of 1844 and 1846, abolishing jury trials in the
county court of a certain county, and giving exclusive jurisdic-
tion to the superior court where the intervention of a jury is
necessary, embrace an action of assumpsit begun by attachment,
as well as when it is commenced by a ccqnas ad respondendum.
Harris v. Hampton, 7 Jones, 597.
42. The fact that a county court, by a special statute, cannot
have jury trials, does not deprive a party of his common law
right to have issues of fact tried by a jury ; for the issues when.
808 JURISDICTION— TI-III.
ma(ie up may be removed to the superior court for trial.
Buchanan v. McKenzi', 8 Jones, 91, S. P. Buchanan v. McKenzic,
8 Jones, 95.
43. The county courts liave a discretionary power to set aside
a verdict and judgment and^grant anew trial, at any time during
the term, and the propriety of its exercise cannot be re-exam-
ined on an appeal. Scaf v. Bufldn^ 8 Jones, 161.
44. An action of covenant for quiet enjoyment is transitory,
and, though entered into in another state, the courts of this state
may take jurisdiction of it. Jacl'son v. Hanna, 8 Jones, 188.
45. The powers of a court of limited jurisdiction, like the
county court, cannot be enlarged by implication. Thompson v.
Cox^ 8 Jones, 311.
See (Executors and Administrators— Of sales by executors
and administrators, and herein of purchases by them at their
own sales, 26-27.) (Habeas corpus, 3.") (Tenants in common,
.30.)
in. OF THE COURT OF EQUITY IN SELLINU INPANl's PROPERTY.
1. A court of equity has a general jurisdiction to direct the
sale of the estates of infants, whenever the purpose for which
the sale is directed shall be deemed by the court beneficial to
the infants. WiUianis v. Harrington, 11 Ired., 616.
2. The decree in such a case cannot be impeached in any oth-
er court ; neither upon the ground that a guardian was not ap-
pointed by the proper court, nor that there was not due adver-
tiseinent or competent evidence of it, nor that the interest of
the infant was not promoted by the sale, nor that, for any other
reason, it was not a proper case for a sale, nor that the decree
did not find the facts, which showed the sale to be beneficial,
nor upon any similar grounds. 7 bid.
3. Where a decree is made on behalf of infants, for the sale of
the lands of the deceased debtor lying in Moore county," and
a sale is made of several sf)ecified parcels of land, the sale rati-
fied, and an order of the court to convey to a particular pur-
cliaser, no exception can be taken to the general description of
the land in the decree ordering the sale. Ibid.
4. The court has the power, with the consent of the rej^uted
purchaser, to substitute another person in his place; though, as
a matter of wholesome practice, such a substitution ought not
to be allowed l)efore the payment of the purchase money, nor,
perhaps, without looking^ to the rights even of third persons, as
against the first purchaser. Ihid.
5. Under an order of the court of equity for the sale of the real
estate of infants, the deed of the commissioner, appointed to make
the sale by virtue.of the provisions of the act of 1827, transferred
JURISDICTION— III-IY. 809
to the purcliaser the legal title. Ibid. (See Eev. Code, ch. 54,
sees. 32 and 33 )
(J. A sale of land by a decree ol the court of equity is, in ef-
fect, a sale by the owner of the land through the agency of the
court. Williams v. Counnl, 8 Jones, 229.
7. Where land of an infant was sold by a decree of the court
of equity, and tlie purchaser went into possession, but no deed
was made hj the master daring his continuance in office, it teas
held that during this time the purchaser was in as the tenant of
the former owner, and that his taking a deed from the clerk and
master after his going out of office did not change that relation.
Nor was the relation changed, so as to make the possession ad-
verse, by the purchaser's making a deed in trust to secure debts
but still" remaining in possession. Nor was it changed by an
agreement of the purchaser to sell the land absolutely, and an
entry and possession by the party contracting to buy, he ac-
knowledging hhnself the tenant of the first purchaser. Ibid.
See (clerks and Clerks and Masters — Deeds executed by Clerks
and Masters.)
IV. OF THE SUPREME COURT.
1. No agreement of the parties can confer on the supreme
court a jurisdiction to render any other judgment, than what,
in law appears to them ought to have been rendered in the su-
perior court. Bethea v. 3IcLennon, 1 Ired., 523.
2. Upon the death of one of the judges of the supreme court,
the two surviving judges have full power and authority to hold
the court and exercise all its functions. State v. Xa?ie,41red., 434.
3. The only jurisdiction conferred on the supreme court in
cases at common law is appellate, after a judgment in the supe-
rior court; and where there has been no such judgment the su-
preme court will not entertain jurisdiction of the cavise. Mc-
Kenzie v. Little, 9 Ired., 45.
4. The supreme court has no original jurisdiction of a sci,fa.
against bail, in an action brought to it by appeal, and in which
judgment has been rendered against the principal. The sci. fa.
must be issued in the court below, in which the bail bond was
taken and returned. Jones v. 3IcLaurine, 7 Jones, 392.
5. The supreme court cannot talce jurisdiction of a suit at
law removed by consent, either before or after judgment. Hod-
man V. D'lvis, 8 Jones, 134.
S^e (Habeas Corpus, 3-4.)
810
JURY— I.
II.
JURY.
Who are competent, and who are ex-
empt as jurors.
Liability ot jurors for non-attendance.
III. Of challenges to the jurj^
IV. Of the conduct and the province of
the jury in the trial of causes.
I. WHO ARE COMPETENT, AND WHO ARE EXEMPT AS JURORS.
1. A freeholder in another state is not competent to serve as
a juror in this state, but the objection comes too late after ver-
dict. State V. Greeirivood, 1 Hay., 141, (162.)
2. The act of 1771), (Rev. Code, ch. 31, sec. 20,) which requires
that county courts shall not nominate persons to serve as jurors,
who have suits at issue at the term to which they are to be sum-
moned, is only directorv and does not apply to grand jurors.
State V. Oldliani, 1 Hay.," 450, (518.)
3. Where a jury has decided in a suit on one bond, they are
competent to sit in another suit on another bond in which the
question is the same. Slieppard v. Cook, 2 Hay., 238, (422:)
(But see Baker y. Harris, 1 Winst., 277.)
4. A commissioner of navigation is not exempt from serving
as a talesman. State v. Hoijij, 2 Murph., 319, S. C. N. C Term
R., 254, (684.)
5. Freeholders in another state, owning no freehold in North-
Carolina, are not qualified to serve as juors in this state, and
talesmen must be freeholders of the same description as those of
the original panel. Sheejpsliants v. Jones, 2 Hawks, 211.
(). If the sheriff summon as talesmen, persons w^ho are not by-
standers in the courthouse,, the calling them in will make them
competent as such, whether they could Jiave been fined lor non-
attendance or not. State v. Lamon, 3 Hawks, 175.
7. An order to the sheriff to summon talesmen need not be
returnable the same day it issued. Ihid.
8. The law is silent as to the^ number of talesmen to be sum-
moned, and the court may, in its discretion, determine the num-
ber, or leave the sherifi' to summon as many as he may deem
necessary. Ibid. (The matter is now regrtlated by statute, see
Rev. Code, ch. 35, sec. 30.)
9. A statement on the record that " on ballotting, the follow-
ing jurors are duly elected, sworn and charged to serve as grand
jurors," &"c., shows a sufficient compliance Avith the act of 1779.
State V. Seaborn, 4 Dev._ 305. (See Rev. Code, ch. 31,. sec. 34.)
10. An irregularity in the mode of empanelling a grand jury
can only be taken advantage of by a plea in abatement upon the
arraignment, and the objection comes too late after verdict. Ibid.
11. The act of Congress of 1825, ch. 275, sec. 35, exempting
postmasters to serve on juries, is constitutional; and they cannot
JUKY— I-II-III. 811
be compelled to serve as jurors on the original panel in the state
courts, though it seems they may be compelled to serve as tales-
men. Stcde V. JViJIiaws, IDev. and Bat., 372.
12. On the trial of a capital case, the names of the jurors o£
the original panel should be first put into the box and di-awn,..
before those of the talesjurors are put in and drawn ; and the
jurors summoned under the special venire facias, provided by the
act of 1830, are, in this respect, to be regarded as talesmen. State
V. Benton, 2 Dev. and Bat., 196.
13. The court has a right to excuse jurors, who have been,
summoned upon a venire in a capital case, upon their application
for any reasonable cause.. State v. Craton, G Ired., 164.
14. A person who is exempted by law from serving onjuries,.
is not bound to serve as a juror on a special venire. State v.
Whitforch 12 Ired., 99.
15. If it appear that an order for a special venire wasobtained, and
that the jurors attended, it is not necessary that the record should
positively show tliat the writ was issued by the clerk, as it will
be presumed that the writ did issue. State v. Perry, Busb., 330.
16. To constitute a legal jury under the arct, Rev. Stat., ch. 35,
sec. 17, it is not necessary that any jurors should be summoned
under the special venire. The prisoner has a right to the full
benefit of the onder of the court directing a special venire, and
if the order has not been obeyed, it would be a good objection
to the court's proceeding with the trial ; but it rhe prisoner select
his jury, without objection on that ground, it is a waiver of it.
lUd. (See Rev. Codes, ch. 35, sec. 30.)
17. It is not necessary to the legal constitution of a grand
jury, or their legal transaction of business, that an officer should be
appointed to wait upon them. It is convenient and proper that
they should have such an officer, and when a constable is ap-
pointed, he must take the prescribed oath ; but not so with the
sheriff", wdio, being a sworn officer of the court, can properly
attend on the grand jury without such an oath having been
taken by him. Ibid.
See (Constitution — Acts which have been declared constitu-
tional, 12.)
n.' LUBH^lTY OF JURORS FOR N02f-ATTENDAXCE.
1. If a juror be fined for non-attendance, he is liable to be
taxed with a fee to the solicitor or attorney for the state on a
sci.fa. against him. State v. Whisenhurt, 1 Murph., 287.
UI. OF CUALLENGf:S TO THE JURY.
1. If the prisoner challenge the 36th juror peremptorily on a
capital trial, his challenge shall be disallowed. State v. Qay^ier,
812 JURY— III.
Conf. Rep., 305, (392.) S. C. 2 Hay., 140, (312.) (Only twenty
three peremptoiy challenges are now allowed. Rev. Code, ch.
35, sec. 32.)
2. When a prisoner silently acquiesces in any irregularity in
forming a jury, and especially when he partially consents to it
i'or the sake of having a trial, he waives his right to make any
exception to the jury after trial. State v. Ward, 2 Hawks., 443.
3. An alien is not entitled to a jury c/e medietate linguae in
North .Carolina. State v. Antonio, 4 Hawks., 200. '
4. A slave indicted for a capital felony is entitled to a jury of
slave owners. State v. Jim, 1 Dev., 142. (See Rev. Code," ch.
107, sec. 34.)
5. General hostility between a juror and a party, without any
connection with the action to be tried, is a good cause of chal-
lenge; but the fact that the juror and one of the parties are
stockholders in the sareie incorporated turnpike company is not
a good cause of challenge. Brittain v. Allen. 2 Dev., 120.
6. The right of challenge is intended to secure an impartial
trial, by excluding objectionable persons from the panel, and not
to enable the accused to select a jury of his own choice; there-
fore, where a juror was tzliallenged for cause by the State, and
the cliallenge allow^ed, and then the jury was completed before
the prisoner's peremptory challenges were exhausted, the suffi-
ciency of the State's cause of challenge will not be examined.
^tate v. Arthur, 2 Dev., 217.
7. The State need not assia-n her cause of challenge, nntil the
panel is exhausted; and then the prosecuting officer must show
the cause, and, if it be not allowed by the court, the juror must
be sworn and tendered. Ibid.
_ 8. The officer prosecuting for the State may, on a capital trial,
direct a juror to stand aside until the panel be gone through
with, which is a challenge for a cause to be shown at the end of
the panel; a'5:id if a cause be then shown and disallowed, the
prosecuting officer may still challenge the juror peremptorily, or
not, at his discretion. But this practice, of permitting the pros-
ecuting officer to defer showing his cause of challenge until the
panel be gone tiirough, must be exercised under the supervision
of the court, who will restrain it, if applied to an unreasonable
number. State v. Benton, 2 Dev. and Bat'., 196. (The State is
allowed four peremptorory challenges, bv statute, in capital cases.
See R,ev. Code, ch. 35, sec. 33.)
9. The juror may be examined as to opinions, honestly formed
and honestly expressed, manifesting a bias of judgment, not re-
ferable to personal partiality or malevolence; but if the opinion
has been made up and expressed under circumstances which in-
volve dishonor and guilt, and where such expression may be vis-
ited with punishment, he ought not to be required to testify, so
a« to criminate himself. Ibid.
JURY— III. 813
10. An opinion fully made up and expressed against either
party, on the subject matter of the issue to be tried, is good
cause of principal challenge; but an opinion imperfectly form-
ed, or one merely hypothetical, that is, fomided on the supposi-
tion that facts are as they have been represented or assumed to
be, does not constitute a cause of principal challenge, but mav
be urged by way of challenge to the favor,, which is to be al-
io v>^ed, or disallowed, as the triers nuiy find tlie fact of favor or
indifferency. Ibid.
11. A challenge of a juror, because of his having formed and
expressed an opinion upon the question to be tried, can be made
only by the party, against .v horn it was so formed and expres-
sed. Ibid.
12. The forbearing of a court to discharge a juror, to whom
no exception has been taken, though there be ascertained cause
of challeuge against him, cannot be assigned for error, because
the right of challenge in the parties remains, and neither of
them can be injured by such forbearance to act on the part of
the court. Ihid.
13. The nature and legal consequences of the practice of put-
ting what is called the preliniiaanj quesfion to jurors upon cap-
ital trials explaijied, and such practice, except under particular
circumstances, disapproyed of; and the legal and regular mode
of trying exceptions to jurors, and forming juries on trials for
capital offences, pointed out and recommended. Ibid.
14. The disallowance of a legal challenge, whereby the party
taking the exception is compelled to accept,, as a juroi', a person
whom he had a right to reject, is a grouiid, not' properly for a
new trial, but for a venire de novo. It is a denial to him "of an
imperative rule of law, which vitiates the verdict, and lays a
good foundation for a writ of error. Ibid.
15. An objection to the grand jury comes too late after a plea
to the felony. Slate v. Blartin, i Ired., 101.
IG. The right to challenge a juror is a right to reject, not to
select; and therefore neither of two defendants on a joint trial
upon an indictment has cause to cumplain of a challenge bv the
other. State v. Smith, 2 Ired., 402.
17. Where a juror was challeuged for cause, and it appeared
that his wife was cousin to the prisoner's former wife, who was
now dead leaving no children, if wan held that this was no cause
of challenge, the affinity having ceased with her death. &tuJe
V. Shou\ 3 Ired., 532.
18. Tlie improper allowing or disallowing of a challenge is a
ground for a venire de novo, not as a matter of tliscretion in the
court, but of rio-ht to the pai'ty; and it is therefore a good foun-
dation for a writ of error. Ibid.
ll>. The withdrawal of a juror from the panel by the court
without 6'?^'c«e?(^ cause, is in law, however excusable the error
§14 JURY— III
an arbitrarv withdrawal, for which the court has no authority.
Ibid.
20. The jurors of the original vewre constitute a distinct pan-
el. When that panel is perused, or gone through witli, without
forming a jury, any individual member thereof, who, upon the
chaUenge of the State, has been set aside to see whether a jury
might not be formed from the panel without him, must be
brought forward and challenged or taken, before the special ve-
nire^ or tofe^s jurors, can be resorted to. Ihid.
21. hi the trial of a capital case, the original venire ought to
be tirst drawn and tendered; but if the judge should, where
there are only eleven of the original panel, direct tales jurors to
be drawn with them, the prisoner will have no right to a venire
de novo on that account, if he have had an opportunity of ac-
cepting or of rejecting all of the original venire. State v. Lytic,
5 Ired., 58.
22. Where one of the venire, upon being called, was challenged
by the State and directed to retire until the panel was gone
tlirouo-h with, and was not afterwards recalled, the prisoner
making no motion to that effect, and it being known that the ju-
ror was a witness for the prisoner, it luas held that this was no
ground for a venire de novo on the part of the prisoner. Ibid.
23. After the petit jury in a capital case has been sworn and
-empannelled, it is too late to object that the grand jury was
drawn by a boy of thirteen years of age. If the objection had
been a good one at any time, it ought to Imve been made in the
form of a challenge to the array before the petit jury was sworn.
State V. Undencood, G Ired., 06.
24. The state's challenge to a juror for cause need not be de-
t;ided on immediately, but it is in the discretion of the court to
let it stand until the panel be gone through. State v. Craton, G
Ired., 1G4.
25. In forming a jury in a capital casa if a person be chal-
lenged for cause, and state upon his examination " that he had
formed and expressed an opinion adverse to the prisoner, upon
rumors whicli he had heard ; but that he had not heard a full
statement of the case, and that his mind was not so made up as
tc) prevent the doing of impartial justice to the prisoner," the
court may find him indifferent, and having so found as a matter
of fact, the supreme court cannot revise the decision. State v.
Ellington, 7 Ired., 61. _ _
26.* On the trial of an indictment against a slave for a capital
offence, it is good cause of challenge on the part of the State to
one called as a juror, tliat he is nearly related to the owner of
the slave, as it would be on the part of the prisoner that a juror
"was a near relative of the prosecutor. State v. Anthoni/, 7 Ired.,
234.
27. On a trial for a capital offence, a special venire for one hun-
JURY— III. 815
drecl jurors was ordered and returned, and after the original
panel Avas perused and exhausted, the court ordered thirty-six
oi the tales jurors to be drawn, and, these being exhausted by
challenges, directed the remaining tales jurors to be drawn, the
prisoner at the time making no objection ; and it was held that
there was no error in the proceeding, btafev. Nash, 8 Ired., 35.
28. Where, on a capital trial, the prisoner challenges a juror
for favor, and the solicitor for the State aduaits tlie cause assigned
to be true, the prisoner is bound by his challenge, and cannot
afterwards be allowed to have the matter tried, either by triers
or the court. State v. Creasman, 10 Ired., 395.
29. Where a juror, upon being challenged, swears that he has
formed and expressed an opinion, but only upon rumor, and that
he could do impartial justice, upon hearing evidence in the case,
■prima facie the juror is competent, though, in some cases, the
court or the triers may find otherwise. State v. Dove, 10 Ired.,
469.
30. Although a juror may sit on the trial, against whom there
■\va« good cause of challege, yet the party, by not having made
the objection in time, waived it. Briggs v. Byrd, 12 Ired,, 377.
31. The relationship of a juror to the prisoner, whether by con-
sanguinity or marriage, is a good cause of principal challenge
on the part of the State, but such relationship must be withm
the ninth degree. Plence, where the great-grandmother of the
juror and the grandmother of the prisoner were sisters, it was
held that the juror w^as in the proscribed degree, and was proper-
ly rejected. Stale y. Perry, Busb., 330.
32. A defendant, upon a trial for a felony, though clergyable,
is entitled to challenge peremptorily thirty-five jurors. State \.
Caldicell, 1 Jones, 289. (Twenty-three peremptory challenges is
the number now allowed. See Eev. Code, ch. 35," sec. 32.)
33. It is too late after a juror has been tendered and taken bv
a prisoner, and has served on the trial, for the prisoner to except
to his competency. State v. FatricJ:, 3 Jones, 443.
34. Where, upon the trial of a capital case, the scrolls, contain-
ing the names of tlie jurors in the special venire, had on them
the surnames of the persons written in full, 'but the christian
names were only indicated by initial letters, no objection having
been made when the scrolls were put into a hat to be drawn out,
it loas held that this formed no ground for a challege to the jurors.
State V. Simmons^ 6 Jones, 309.
35. A challenge to a juror, propter affectum-, involves a question
of law, as well as of fact; and though by consent the judge be
allowed to take the place of "triers," yet his decision on a ques-
tion of law may be reviewed in the supreme court. Seliorn v.
Williams, 6 Jones, 575.
3(i. It is a good cause of challenge to a person tendered as a
juror in a* civil case, that he is the son-in-law of one who is the
816 JURY— III.
surety for the prosecution of the suit; and where the relation-
tonship is admitted or found, it is purely a question of law. Ibid.
37. It is not a good cause of a challenge to a juror that he has
formed and expressed an opinion against the prisoner upoii mere
rumor, when he declares that the rumor has not produced such
an impression upon his mind as to prevent is doing impartial
justice to the prisoner. State v. Bone, 7 Jones, 121.
38. The prisoner has no right to postpone showing his cause
of challenge to a juror unto the end of the panel, that being
altogether the privilege of the State. Ibid.
3*:). It is no ground for a cliallenge to the array in a capital
case, that it does not appear, from an order fcr a special veiiii e
facias, that it was made in the case of the prisoner. It is suffi-
cient if it appear that it was made at the term Avhen the trial
w^as had. State v. 3Iurph, 1 Winst., 1 29._
40. A challenge to the array of jurors is generally founded on
a charge of partiality, or some default,, in the sherift" or other
ofiicer summoning them. Ibid.
41. Where an action brought by A against B for fraudu-
lently removing a debtor, was tried and a verdict found for the
defendant ; and immediately afterwards the same jury was called
and tendered in a suit for the same transaction by C against B,
and were challenged by the plaintifl:'; it was hdd, 1st, that the
challenge was one to the polls, and not to the array; 2nd, that
it was a principal cause of challenge involving matter of law,
and, therefore, liable to be reviewed upon an appeal; and, 3rd,
that the jurors were incompetent, by reason of having set upon
and deci(^ed the other case, and that,, consequently, the challenge
ought to have been allowed. Baler v. Harris, 1 Winst., 277.
42. Jurors ouglit not to be asked either on oath or otherwise,
whether their minds are in such state that they can try a case
fairlv and impartially. Their answers can have no influence on
the question of their competency, and it is an improper practice
to ask them. Ibid.
43. If a challenge by the prisoner for good cause be disallow-
ed, and the juror be tlien challenged peremptorily by the pris-
oner, but the panel is completed before he has challenged pe-
rfmptorily as many as twenty theie jurors, there is no cause for
a new trial. Slate v. Cod-man, 2 Winst, 95.
44. A juror challenged by the prisoner, because he had formed
and expressed an opinion that the prisoner was guilty, said on
his exaniination by the court, that he had formed and expressed
an opinion to that eliect trom rinnor, but that he thought he
pould give an impartial verdict on the trial, was p:operly ad-
judged by the com-t to be a proper juror to be temleretl to the
prisoner. Ibi<t.
See (Ba^tarny— Proceedings in bartardy < ases, 32.) (Jiny —
Who are competent and wlio exempt as jin-ors.
JURY^IV. 817
IV. OP THE CONDCCT AND PROYIXCE OF THE JDRT IN THE TRIAL OF CAUSES.
1. If the jury in a capital case separate without giving a ver-
dict, the prisoner shall not be again put upon his trial for the
same offence. S'ate v. Garngucs, 1 Haj., 241, (276.)
2. If a trial be by thirteen jurors, it is good cause for a writ of
error. W/tifehurstv. Davis, 2 Hay., 113, (272.)
3. If two jurors in a capital case retire without permission and
without an officer, it shall not vitiate the verdict, if they will
make affidavit that they spoke to no one while they were out.
State V. CarsfapJicn, 2 Hay., 238, {i-22.)
4. It is the province of the jury to weigh the evidence, while
it belongs to the court to say whether the evidcuce offered be
conducive to prove tiie fact. Jones v. Fulgham, 2 Murph., 364.
5. If the jury take refreshments while they are charged with
a case, it is no cause for a new trial, unless it appear that the
refreshments were furnished by the party in whose favor they
rendered their verdict. State v. SiMirou; 3 Murph., 487.
6. It is the province of the jury to decide, not only on the
veracity and credit of the witnesses, but also on what facts are
proved by the testimony; and it is error in the court to direct
the jury that they must infer one fact from another. Bank of
Neiohernx. Pvjh, 1 Hawks, 11)8.
7. ]\lisc(niduct on the part of a jury, to impeach their verdict,
must be shown by other testimony than their own. State v.
McLeod, 1 Hawks^ 344.
8. A short absence of one of the jurors empanelled, for
necessary purposes and witliout any imputation of improper
motives, docs not vitiate the verdict of the jury. State v. Lytle,
5 Ired., 58.
9. The jury, after they were empanelled, went in a body, under
the care of the sheriff, a mile and a half in the country for recre-
ation, but they were kept together, and no one was' permitted
to speak to them, nor were they permitted to speak to any one,
and upon returning they immediately retired to their room, and it
teas held that there was no impropriety in this, and it was no
separation of the jury. State v. Perry, Busb., 330.
10. The jury are not judges of the law in criminal trials, and
the court commits no error in telling them so. State v. Peace. 1
Jones, 251.
11. Where two of the jurors charged in a capital case left the
rest of the jury for fifteen or twenty minutes, but did not speak
to any one about the prisoner or his trial, nor hear any one speak
of him, it was held that there was no gi'ound for awarding a
venire d^ r.ovo. State v. Hester, 2 Jones, 83.
10^
818 JUSTICES OF THE PEACE^E-
JUSTICES OF THE PEACE.
I. Of justices' warrants in civil cases.
II. Of justices' warrants in criminal pro-
ceedings.
III. Of the granting of new trials by jus-
tices.
IV Of their jurisdiction, judgment and^
execution.
V. Of justices' executions levied on land":
and returned to courf.
VI. Of the responsibility of justices.
I. OP JUSTICES WARRANTS IN CIVIL CASES.
1. A warrant, that does not state that the sum demanrled is-
over five pounds, but only that it is under twenty pounds, will'
not authorize an arrest under the act of 178(), which authorized
an arrest when the sum demanded was over five pounds. Lut-
terloh V. PowelJ, 1 Hay., 395, (455.)
2. A warrant is erroneous, and the judgment on it may be re-
versed, if it do not appoint some time and place within thirty
days for the defeudant's appearance. Anoinimovs, 1 Hay., 398,
(4d8.)
3. The plaintiff must state in his warrant the nature of his de-
mand, so as to give notice to the defendant for what he is sued.
Hence, if a warrant demand a sura as due by account, the
plaintiff cannot claim damages for breach of an agreement. Da-
vis v. Watters, 2 Hay., 172, (363.)
4. When a person signs a paper, which may relate either to-
ll is personal or political character, if it is intended to relate to
thi.> latter, it ought, for the sake of certainty, to be so expressed.
But it the paper be peculiar to his political character, there is no
need of any addition to his signature. Hence a warrant signed
by a justice cannot be avoided, though he does not mention his
political character. fSiler y, JFayrl, 1 Car. L. R., 548, (161.)
5. Til warrants upon penal statutes before a single justice,,
there must be son^e reference to the- statute which gives the
[)enalty, and the omission of it will will be fatal even after a
verdict. Sroter v. JFInrrinr/ton, 1 Hawks., 192, S. P., Buncombe
Tirnpike Comparnj v. McCarson, 1 Dev. and Bat., 306.-
6. If a warrant state the parties, the sum demanded and how
due, it is sutlicient. Hamilfon v. Jervis, 2 Dev. and Bat,, 327.
7. A warrant f(.)r a penalty nnist set forth the acts which give
the penalty to the plaintiff, in order to show "liow the sum is
duo," which is a matter of su-betance. But the plaintifi may
amend by agreeing to claim no costs from the defendant. Duf-
_/// V. Averitf, 5 Ired., 455.
M. A warrant from a justice in a civil case need not, on its^
face, be returnable on a certain day or- at a certain place, but
only within tliirty days. The day and place are to be notified
by the constable who serves the warrant. Ibid.
JUSTICES OF THE PEACE— I-II. 819,
9. A justice s warrant in a civil case requires no seal. Ihid.
10. A justice's warrant in a civil case must name the proper
parties, and state a cause of action within the justices' jurisdic-
tion, both as to tlK3 nature and the amount of the demand. Ibid.
11. The justice's warrant, for a penalty in not working on a pub-
lic road, need not show on its tace that the road was in the
county in which the warrant issues. AVarrants never have a
Venue; and the objection, even if the case had been in a court
of record, must have been taken advantage of by plea in abate-
ment. Ihid.
12. Tne continuances of a warrant need not be ""stated on the'
face of the proceedings. State v. Ccnolly, 6 Ired., 243.
13. A seal is not required to be affixed to an attachment or
warrant issued by a justice in a civil case. Parker v. Gilreath,
7 Ired., 400.
14. The prea:mble to a warrant constitutes part of it, and
where it sets out in apt words the olfence for which, as the plain-
tiff alleged, the defendant had incurred the penalty sued tor, the
form is a proper one. Narsnaw v. Croio, 11 Ired., 240.
15. The same strictness is not required in the deseripti* n of a
note in a justice's warrant, as is required in a declaration in
court. It is suflicient, if the warrant describe the cause of ac-
tion, so as to bring it within the jurisdiction of a single justice,
as defined by statute. Emmit v. McMillan. 13 ired., 7.
16. A justice has no authority under the act of 1741, Eev.
Stat., ch. 24, sec. 10, to appoint a special constable to execute a
warrant, or any other process, in a civil case. Garlick v. Jones, 3
Jones, 404. (See Rev. Code, ch. 24, sec. 11.)
17. A warrant against a railroad company for the non-pay-
nuiut of a certain sum " due by damage sustained," there being
nothing in any other part of the proceedings to make it more
definite, is fatally defective. Wagoner v. Nort'i Carolina Bail-
road CourpaMy, 5 Jones, 367.
See (Arvest, 8.)
n. OF JUSTICES WARRANTS IN CRIMINAL PROCEEDINGS.
1. If a justice issue a warrant for a matter Avithin his jurisdic-
tion, though he may have acted erroneously in the previous
stages, the officer should execute it; but if it be for a matter not
wifhin his jurisdiction, the ofiicer ought not to execute it. 'State
v. Curtis. 1 Hay., 471, (543.)
2. If the officer be a known one of the district where he is act-
ing, he need not show his warrant when he makes the arrest;
but if he be an officer appointed for a special purpose, he ought
to show his warrant, if demanded. Ihid.
3. When he makes the arrest, he should briefly inform the party
arrested of the cause; otherwise the arrest is not good. Ihid.
820 JUSTICES OF THE PEACE— II.
4. If the warrant want a seal, it is void, and will not justify
the officer in making an arrest. Ibid.
5. A search warrant can be granted only to seize stolen goods;
and Avhen a warrant recited that A had enticed the negroes of
B to leave him, and that he was harboring them, and com-
manded the officer to seize them, held that the justice had no
authority to issue it, and that it did not justify the officer. Stata
V. McDonald, 3 Dev., 468.
6. An officer cannot decide whether a warrant, professedly
within the jurisdiction of the magistrate issuing it, be issued
properly, but he must, at his peril, determine whether he who
issued it had jurisdiction of the matter. Ibid.
7. A warrant to arrest persons, neither named nor described,
is void. And a warrant, reciting that A B and " company " had
committed an ofience, and commanding the officer to apprehend
said " company," will not justify the arrest of any person ; for
the mandatory part does not direct the taking of A B by name,
or by any description, and it is not helped by the recital ; for the
Avords "said company" refer only to the company with A B,
and not to A B himself Mead v. Yoimg, 2 Dev. & Bat., 521. _
8. Criminal process, defective for uncertainty in the descrip-
tion of the defendant, is not aided by the act of 1794, providing
that warrants shall not beset aside for want of form, for that
act, in its terms, applies to civil process only; and besides, XhQ
description of the defendant is matter oi substance. Ibid. (See
Rev. Code, ch. 02., sec. 22.)
9. A warrant for the appreheneion of a man's person cannot
be rightfully altered, even by another magistrate, after it has
finally left the hands of the "one who issued it. And if it be
altered by another magistrate, after it has been so issued, by in-
serting the name of another person to be apprehended, it will be
no justification to the officer who executes it, for j-aking such
other person. Hash'ns v. Younff, 2 Dev. & Bat., .'■)27.
10. In a warrant for the penalty incurred by a violation of the
act prohibiting the sale of spirituous liquors, &c , near a church,
&c., it is not necessary to name the person or persons to whom
the' articles were sold ; because each act of selling is not a dis-
tinct offi.'nce, but only one offence is committed, and only one
penalty incurred by the same individual, by any ]iumber of salea
to any number of persons in the same day. .^/rf/e v. Muse, 4
Dev. & Bat., 319. (See Eev. Code, ch. 97, sees. 7 and 10.)
11. A warrant for the penalty under the acts (before they
were revised and consolidated) sliould have conchuled against
the form of ike statnfes; the rule being, that when an act cannot
!.e made out to be criminal, or a penalty to be incurred, without
reading more than one statute, it is then necessary that the in-
dictment, Avarrant or declaration should conclude "against the
form of the statutes," in the plural. Ibid. (The rule is now
JUSTICES OE THE PEACE— 11 821
altered and no judgment shall be stayed whether the conclusion
be either in the singular or plural. See Rev. Code, ch. 35, sec. 20.)
12. A justice has no right to issue a search warraut for run-
away slaves, or for such as have been seduced away. He can
only issue sucli a warrant lor goods or cliattels, which are dis-
tinctly alleged to have been stolen. State v. 3ian b Ired , 45.
13. Where, on the face of a search warrant, it ; ppeors that
the justice had no jurisdiction, it will not protect th^ officer who
executes it from being a trespasser. Ibid.
14. The justice ought not to issue any warrant except on the
oath of some person; bnt although it does not appear to have
been issued on oath, the officer is justified in executing it, if the
subject matter be within the justice's jurisdiction. Ibid.
15. A seal is indispensably necessaiy to a warrant issued by
a justice to arrest a defendant ou a criminal charge. Welch v.
Scott, 5 Ired., 72.
IB. It is the duty of a justice, before issuing a warrant on a
criminal charge, except in cases si per visum, io require evidence
on path amounting to a direct charge, or creating a strong sus-
picion of guilt; and an inntjcent pei-S(ni, arrested ou a warrant
iSciued by a justice, ]K)t on his own view, nor on any oath, would
have an action against the justice. But the officer executing
such warrant is justified, the subject matter being within the
justice's jurisdiction, though it do not appear upon what evidence
it was issued. Ibid.
17. A seal is essential to a warrant issued by a justice to arrest
a person for a criminal offence, and if there be no seal, the war-
rant is void, and the defendant is justified in resisting its execu-
tion Slate V. JVorley, 11 Ired., 242.
18._ Wiiether there be a seal or not, is a mixed question of law
and fact, to be decided by the judge below, and from his decis-
ion there is no appeal to the Supreme ('ourt. I hid.
19. A justice has no power to issue a warrant to search for a
runawa3^ negro, and neither the justice who issues it nor the
officer who acts under it will be protected against an action of
trespass, by one whose premises are invaded. Cohoo.i v. Sjjecd, 2
Jones, 133.
20. file deputation to a person to execute a state's warrant
mider the act, IJev. Stat., ch. 34, sec. 10, ceases with the execu-
tion of the warrant and the return of it, together with the bring-
ing the defendant therein before a justice. Stxtc v. Dean, 3
Jones, 303. (See Rev. Code, c'-. 24, sec. 11.)
21. The deputation of such person to take a defendant to jail,
under a mittimvs, cannot be given by the justice by parol,'but
must be in writing. Ibid.
22. A state's warrant issued in a county bordering on South
Carolina, charging that the defendant "committed murder
somewhere between this place and Texas," is void, as being too
vague and indefinite. Price v. Grahan, 3 Jones, 545.
«22 JUSTICES OF THE PEACE— II-III-IV.
23. A warrant to arrest a fugitive from justice under the act,
Eev. Stat., cli. 35, sec. 5, is required to be issued by two justices,
and is void if issued by one only. Ibid. (Such a warrant may
now be issued by one justice. See Eev. Code, ch. 35, sec. 5.)
24. Where, in the recital of a state's warrant issued by a jus-
tice, the true name of the defendant is inserted, but in the man-
datory part it ismisreeited, the discrepancy will be cured by the
reference to the name in the recital. If it were necessary, how-
ever, the justice Avho issued it might, at any time afterwards,
correct the mistake. BJair v. Horfon, 6 Jones, 543.
See (Penal Statutes, 5-9-15.) (Tounis, 3.)
III. OF THE GRANTING OF NEW TRIALS BT JUSTICES.
1. Where a judgment Avas rendered by a justice against an
absent party, and the party within ten days thereafter applied
for a new trial under the act. Rev. Stat., cli. 02, sec. 15, the jus-
tice has no ria'ht summarily to vacate the judgment; and, if he
do so, the order will be void, and the original judgement will re-
inain in lull force. *S7oa.>^ v. 3IcLean, 12 Ired., 2(J0. (See Rev.
Code, ch. G2, sec. 15.)
2. It was the duty of the jusrice, in such case, to issue a no-
tice to the opposite party, and an order to summon witnesses
and produce all the papers before him, or some other justice, at
someday within thirty days, in the mean time directing a for-
bearance of proceedings ; and on the appointed day the case should
be recon idered. Ibid.
IV. OF THEIR JURISDICTION, JUDGMENT AND EXECUTION.
1. The judgment of a justice does not l)ind lands; and if the
defendant sell his land before a levy upon them under a justice's
judgment, the purchaser will acquire a good title, though the
levy be afterwards returned to tlie court, and the lands be sold
under an order of court made for that purpose. Cresman v.
Geoive. Tay., 22, (17.)
2. When a trial by jury is dispensed with, the justice rai-ist
nevertheless observe the course of the cnminon law in trials; he
must give notice to the party of the charge against him, and
give him an opportunity of making his defence; and the evi-
dence must be siu_;h as the common law approves of, unless the
statute expressly directs otherwise. Sfote v. B'trrou; 3 Murph . , 121.
3. Whenever a special power is given to a justice by statute
to correct an offender in a summary way, withcnit a trial by jury,
he must strictly pursue that power. Ibid.
4. WTien a levy is made by a coi>staDle on the defendant's
land under a justice's execution, and returned the same day to
the county court, which commenced its session on that day, held
that this was a return " to the next court," under the act regu-
JUSTICES OF THE PEACE— IV. 823
lating the duties of constables in that respect. Lanier v. Stone,
1 Hawks, 329._
5. When a justice issues an execution in the first instance,
against " goods and chattels, lands and tenements," such execu-
tion is not in the form required by the act of 1794, but if the con-
stable return that, in default of chattels, he lias levied on land,
it corrects the irregularity, and it is also cured by the KJth sec-
tion of the act of 1794. Ih I. (SeeKev.Code, ch. ()2,8ecs. lGand22.)
6. It is not necessary that a vend, exjjo., issuing from court on
a constable's levy on land, should be made returnable at any
given time, as it Avill be returnable, of course, to the next ensu-
ing term. 1 bid.
7. Whan, on the return of a constable that he had levied on
land, a vend. e:cpo. was moved f )r, and a writ issued as follows,
"• ordered by the court that the land, &c., (describing them)
levied on by the constable be sold," though the order of sale and
the paper called the vend. expo, be blended together, yet it suffi-
ciently api)ears that there was such order. Ibid.
8. Where a record states that a vend.'expo. was returned, on
the first day of the term, satisfied by the sale of land, and it
appears from the case that the land was actually sold on the se-
cond day of the term, it will be presumed that the clerk made
euch an entry, on the record, with reference to the legal fiction
that the term consists of but one day. Ibid.
9. Whi: a judgment and execution are written on the same
paper -.viih the w^arrant issued by a justice, and the w^arrant is
properly directed, such direction will also extend to the execu-
titin, and need not be therein repeated. Fu^h'.jfi'' y. iSykes, 2
Hawks., 54, S. P., Gorernorw Bailey, 3 Hawks., 463.
10. An execution from a justice of the peace binds lands from
"the \&y\, and an order of sale subsequently made has relation
back to that time. EUav v. Raij, 2 Hawks., 508.
11. By the act of 1803, all executions issued by a justice of
the peace must be made returnable in thre^ months, and an
officer is not at liberty to return them unexecuted, in a shorter
time. Neshit v. Balloiv, 3 Hawks., 57. (See Pie v. Code, ch. 62,
sec. 16.)
12. A justice's execution binds chattels from its teste. Becl--
■erdite v. Arnold, 3 Hawks., 296.
13. When a justice enters a judgment on tlio back of a war-
rant, and writes "execute and sell according to law%" the latter
words must be deemed an execution; and if a constable receive
the money under it from the defendant, he and his sureties will
be liable therefor on his official bond. Governor v. Bailey, 2
Hawks., 463.
14. A justice has no jurisdiction, where the sum sought to be
reiGOV,ered is not Bj balance due, but damages for tlie non-perform-
824 JUSTICES OF THE PEi^CE— IV.
ance of an agreement. Sto,fe v. Alexander, 4 Hawks, 182.
15. A justice's judgment is not a record, and does not provef
itself; it, however, resexnbles a record in the particular, that its
merits are not examinaLle in another suit, and an action of as-
sumpsit will not lie on it. Hamilton v. IVnglit, 4 HaAvks, 283.
IG. A sing-le justice has no jurisdiction of actions founded
upon a covenant of guaranty. O'Dwyer v. Cutler, 1 Dev,, 312,
S. P., Adcock V. Fleriiing, 2 Dev. and i3at., 225, and 470.
17. Whether the seal of a justice is necessar}' to a valid judg-
ment is doubtful, but the want of it cannot be objected after a
verdict. Himiphreys v.. J?«?>, 1 Dev., 378.
18. Debt, and not assumpsit, is the proper remedy against the
stayor of an execution, when the judgment is doi'nuuit, and it
lies against him, without joining tlie principal. Ibid.
19. A justice has jnrisdicti(m for a balance due on an execu-
ted contract, for wliich dt^ht or indeJnfafus asumpsU will lie,
but he cannot give damages for the breach of an executory con-
tract. 2)/er V. Harper, I Dev., 387.
20. Where the defendant covenanted to pay a certain price
per hundred for carrying goods, and to deliver a certain quanti-
ty to the carrier, but dehvered less, it 7cas held that a justice
had no juriscHction as to that part of the contract which had
not been perlormed. Ibid
21. A justice's judgment must be evidenced by a written me-
morial made at the time of rendition ; and where a judgment was
confessed before a magistrate out of his county, and an entry thereof
made on the warrant, and afterwards a new conlession was had
before the same justice within his county, but no written entry
thereof was made, and no alteration of the date of the old entry,
it ivas held that in law there was no judgment. Hamilton v.
ParrisJi, 1 Dev. 415.
22. One, who enters himself as surety for the stay of execu-
tion, is not tJiereby estopped to show that the supposed judg-
ment is a mdlity. Ibid,
23. A levy upon land under a justice's judgment, made more
than three months after the date of the execution, is void, and,
therefore, a sci. fa. against heirs founded upon it was dismissed.
McEacMn v. McFarland, 1 Dev. 444.
24. A single justice has jurisdiction of implied contracts;
therefore, where upon the death of a man his wife appropriated
money belonging to his estate to her own use, it ivas held that
it might be recovered by a warrant, without proof of an express
promise to pay it. Ferrell v. Undericood, 2 Dev., 111.
25. The jurisdiction of a single justice extends to all cases
where a general indebitatus as.wipsit will lie. Ibid.
26. A justice's judgment, "that the plaintiff pay costs," is-not
a judgment on the merits, because it may be upon matter col-
lateral to them. E-videu-ce of what the justice m^aut by sufih
JUSTICES OF THE PEACE— IV. 825
judgment is improper, as the entry must speak for itself; but it
is otherwise as to the fact, whether tlie merits were enquired
into whun the judgment Avas rendered. Ibid.
27. Where one promised to pay a debt as soon as he had col-
lected certain notes, it icas held that a single justice had no
jurisdiction of the matter, until the money was actually received
by the defendant on the notes, because until that was done the
only remedy for the plaintiiF was a special action on the case
for"^ neglect in making the collection. Fentress v. JForth, 2
Dev., 221).
28. AVhere the plaintiff has an election to sue either in tort
or in contract, ho cannot maintain assumpsit u])on an implied
contract before a single justice; as the suit niustbo brought in a
court wlilch has jurisdiction of the tort. Clark v. D^q'ree, 2 Dev. 411.
29. In reviewing a justices judgment, every fact necessary to
suppo]-t it is to be taken as f )ancl, unless the contrary appears.
Hai7i'^s V. Dalfon, 3 Dev. 91.
30. A justice can try the truth of any plea, which, if sustained,
would bar the action witliin his jurisdiction. Ihid.
31. The judgment of a justice for a sum above his jurisdiction
is void, and no action can be sustained upon it. Jones v. Jones,
3 Dev., oC){).
32. The expression "liquidated accounts," as explained by the
act of 1829, means "signed accounts," and, therefore, where A
and B were partners, and A gave his own note for a debt of the
firm, and B wrote a letter to A stating that he would pay the
debt to the creditor, it zuas held that the account was not thereby
"liquidated" as against B, so as to give exclusive jurisdiction of
the demand to a justice, although the note, letter written and
action brought were before the act of 1829. Wilson v. Jennings,
4 Dev., 90. (See Rev. Code, cli. 62. sec. G.)
33. An account for a sum exceeding sixty dollars must be
signed, in order to give a justice jurisdiction to try a warrant on it
for money '-due by account." illcFarland v. Nixon, 4 Dev., 141.
34. A promise by A to pay the debt of a third person, which
was less than sixty dollars, on his being discharged from cus-
tody, is within the jurisdiction of a justice, though the debt be
payable "in trade.^ Cooper v. ChamLers, 4 Dev. 2(51.
35. .Justices have no jurisdiction beyond sixty dol'ars, except
when the debt is secured by a bond, note or liquidated account,
and an attachment issued by and returnable before a justice,
founded upon two former judgments for a sum not exceeding
that amount, is voitL and is no justification to an officer acting
under it. Bryan v. Washington, 4 Dev., 479.
36. But a warrant may l)e brought before a justice, and the
plaintift' declare on his old judgment, though the interest ac-
crued may make the sum due on the old judgment more than
sixty dollars. Ibid. (See liev.. Code, ch. Q2, sec, 6.)
826. JUSTICES OF THE PEACE— IV.
37. A justice may, under the act of 1803, postpone a cause
pending before liim, for thirty days, excluding Sundays. Ship-
man V. Mears, 4 Dev. 484. (See Rev. Code, ch. 62, sec. 13.)
38. Upon a covenant to pay $60 annually for two years, for the
hire of a slave, and also to furnish the slave with food, &c., deht
may be brought before a justice for one year's hire; and if the
warrant call ibr that sum due by hoyid^ it will be well supported
by the production of tJie covenant. Ilanillton v. McCarty, 1
Dev. & Bat., )im.
39. The act of 1828, which enacts that a justice's execution
shall bind personal property only from its levy, was passed only
for the protection of purchasers from the defendant in the execu-
tion, and, therefore, if the defendant die after the teste of such
execution, but before its levy, his administrator is bound there-
by, and the goods in his hands may be levied upon and sold
without a scL fa. to revive the judgment. McCarson v. Eichard-
son, 1 Dev. &'Bat., 561. (See Rev. Code, ch. 45, sec. 20.)
40. A single justice has jurisdiction of a contract "to pay the
sum of one hundred bushels of corn," and the warrant is suf-
ficient, if it be "to answer, &c., of a plea of debt, the sum oi one
hundred bushels of corn." H imilton v. Jervis, 2 Dev. and Bat,
227.
41. A plaintifi' may warrant upon any demand of v/hich, in
terms, jurisdiction has been given to a single justice, although
the investigation of the demand may lead to enquiries into sub-
jects, of wliich direct jurisdiction has not been given. Adcock
v. Fleming, 2 Dev. and Bat., 470.
42. The term " book account," may comprehend a "signed"
account, as well as an open one ; and where the judgment of a
single justice appears to have been given on a warrant for more
than sixty dollars, "due by book account," it is to be taken in
support of the justice's jurisdiction, that the book account was a
signed account. Turner v. Edioards, 2 Dev. and Bat., 539.
(See Rev. Code, ch. Cy2, sec. 6.)
43. Where an execution upon a justice's judgment is levied
upon land, and returned to tlie county court, under the act of
1794, it is essential to the validity of the order, which the court
is authorised to make, to sell the land levied on, that the land
should be particularly described; and a levy, in general terms,
upon the defendant's "lands," without further specification or
description, will not support such order, nor the sale made un-
der it. Borden v. Smith, 3 Dev. and Bat., 34. (See Rev. Code,
ch. 62, sees. 16 and 17.)
44. Where an execution upon a justice's judgment is levied
upon land, and returned to the county court, and it appears that
the defendant has not had five days notice, in writing, as re-
quired by the act of 1828, the court has no power to order a sale
of the land levied upon, and any such order will be entirely null,
JUSTICES OF THE PEACE— IV. 827
unless tlie defendant appears and waives notice. Ih'id. (See
Rev. Code, eh. 45, sec. 24.)
45. Where a justice's execution has been levied npon land and
returned to the county court, the plaintiff' may apply to that
court, and have a judgment there rendered in his behalf for the
sum recovered before the justice, and for costs, under the act of
1822, and it seems that a vend. expo, may issue upon such judg-
ment to sell the land levied on, Avith a special fi. fa. to levy gen-
erally for any unsatistied balance of such judgment; but the
power of the court to render such judgment, and issue a ft. feu
thereon, depends upon the fact whethe'r a levy sufficiently spe-
cial has been made, and also whether the defendant has had five
daj-s' notice in writing before court, or has waived it, and if no
such judgment has been rendered, a writ to the sheriff command-
mg him to sell the land levied on cannot have the effect of a fi.
fa. Ihiil. (See Rev Code, ch. 45, sees. 12 and 13.)
46. A person having an account against another, for work and
labor done, may give the other credit for such sums as mav
be justly due him on account, and if the bal.-iuce be thereby re-
duced below sixty dollars, may warrant for it before a single jus-
tice,_and the other party can neither object to the jurisdiction,
nor insist upon having his account of the same items allowed as
a set off to the plaintiff's demand. 3IcRae v. McFuie, 3 Dev. and
Bat, 85,
47. Justice's executions are by law returnable m three months
from their date, but it is not necessary that they should be re-
turned on the last day of the three months. They may be re-
turned sooner and aliases taken out and acted upon ' Tslay v
Steivart^ 4 Dev. and Bat., ](iO. (See Rev. Code, ch. (J2, sec. 10.)
4:8. The signature of a justice is absolutely necessary to an
alias, as well as to an original execution on a justice's judgment.
•Hence an entry of " execution renewed," without the signature
of a justice, at the foot of a dormant justice's execution, gives no
authority to the acts of an officer under it. Uicnins v Ketchiim
4Dev. and Bat., 414.
49. The levy of a justice's execution upon lands, under tlie act
of 1794, need not perhaps be in the very words of the act; but a
description containing a part only of 'that prescribed in the ad
must be taken to be insufficient in point of the certainty thereby
required, until it is shown as a fact that it identified' the land
levied on, as effectually as it would have been identified by a de-
scription conforming to that given in the act. Hence, a levy
"on all the lands of the defendant Iving on Queen's creek,"
without any such evidence of identitv, is not sufficiently specific
to authorize the court to make an order of sale, or, if such order
be made, to support a sale under it. Ibid. (See Rev. Code,
ch. Q2, sec. IG.) \ ■>
828 JUSTICES OF THE PEACE— IV.
50. The levy of a justice's execution upon "all the lands of
the defendant, lying on the head waters of Ketchum's mill pond,
adjoining the lands of the said Ketchum," is substantially, if not
literally, a compliance with the requisitions of the act of 1794.
Ibid.
51. If a justice's execution be levied upon land and returned
to court, and the land be sold under a vend, r-xpo., issued uj)on an
order made by the court for that purpose, the lien has relation
back to the time of the levy, so as to defeat a sale made after-^
wards by tlie defendant. Ihid.
52. A justice's judgment, apparently regular, cannot be col-
laterally impeached by evidence that the constable, by whom the
warrant purported to have been executed, was a liian of gen
eral bad character, and not to be tiustcd in any thing he might say
or do, or by any other parol evidence to show"thatthe warrant had
not in fact b^en executed. It is a juilicial proceeding which ia
conclusive, unless upon some other proceeding directly to avoid
it. Jones v. Jixlliuf, 4 Dev. aud Bat., 454.
5?. When the proceedings before a justice, upon which he is-
sues an execution, are annexed to the execution, and it is ap-
parent from them there is no judgment authorizing an execu-
tion, the constable who has the execution must take notice of
that fact, and will be guilty of a trespass, if he proceed to make
a levy under the process. WMffidd v. Johnston, 1 Ired., 473.
54. Where one owes a debt, by note, of more than one hun-
dred dollars, and gives in lieu thereof two or more notes, each.'
of less than that amount, to the intent that judgments may be
taken thereon before a justice, this is neither a fraud or evas-
ion of the statute, prescribing the jurisdiction of justices out of
court. Fortescu". v. Spencer, 2 Ired. (33.
55. The description of the land levied on by a constable un-
der a justice's execution ought to conform to the words of the
statute, though it will be sufficient if it distinguishes and inden-
tifies the land levied on. SmiUc-y. Lou.\ 2 Ired. 457. (See Eev.
Code, ch. f)2, sec. IG.)
56. Judicial proceedings before a justice are conclusive in
their effects, but they do not prove themselves like records, and
parol evidence mav be introduced to prove that they are void.
CarroU v. McGee, 3 Ired., 13.
57. If a constable, in returning to court a levy on land, does
not describe it as required by the statute, a purchaser under a
vend. expo, issued by the court, in order to support a title in a
trial at law, must show by extrinsic evidence, that the return
does as completely identify the land as it would have been iden-
tified by a literal observance of the statute. Blanchard v. Blanch-
ard, 3 Ired., 105.
58. When an officer has levied a ju.stice's executio i on land
and returned it to court, his raturn of a copy of the notice given
JUSTICES OF THE PEACE— IV. 829
to the defendant, with his official certificate that he has served
it, is sufficient 'prima feme evidence of such service. And it is
hot necessary that the court, in making an order for the sale of
land so returned as levied on by the constable, should set forth
that the notice had been proved to them to have been previous-
ly given. Davis v. Abbott, 3 Ired., 137.
59. A county court cannot order a vend. expo, upon the return
taf a levy on land under a justice's execution, unless it also ap-
pears on the return that there were no goods io be levied on; nor
when it appears on the retiu'n that goods were levied on, but
not a sufficiency ot them to satisfy the execution, and it does
not appear how those goods were disposed of. Hensliaw v.
Branson, 3 Ired., 298.
60. Where a justice has jurisdiction of the principal ques-
tion, as on a contract to pay for certain articles, he has also the
jurisdiction to determine every incidental question, as for in-
stance, whether the condition upon which xhe, contract was to
be executed has been performed. Garrett v. Shaic, 3 Ired., 395.
61. Executions from justices are entitled to priority, as be-
tween themselves, according to the time at which they came to
the officer's hands. And if tlie officer neglect to levy first an
execution from a justice which first comes to his hands, he and
his sureties are liable to the creditor having such execution.
State V. Vide, 3 Ired., 488.
62. Where a constable returned on an execution against A B,
"levied on land supposed to be upwards of 100 acres, where
Richard Heath lives on — no other propeity to be found," and it
appeared in evidence tliat A B had two tracts of laud in the
county, each of about 100 acres, on one of which lie lived him-
self, and on the other James Heath lived, and that the latter was
known as the land of A B on which James Heath lived, it lOas
held that the want of certainty in the description of the land
levied on was not aided by the parol evidence, and that the party
claiming by purchase at a sale nuide under that levy acquired no
title. Morriseij v. Love, 4 Ired., 38.
63. AVhere the identity of land levied on by a constable, with
that claimed under a piii-chase under that levy, is sought to be
established by parol evidence, the enquiry is olie of fact for the
jury and not of law for the court. Hid.
64. Any irregnlarity in the return of a justice's execution
levied on land, as tliat it was not returned to the next court, or
that the persoual property was not exhausted, or any error of the
court in ordering a sale of the land, Avhen the personal property
levied on has not been exhausted, can only be objected to by the
defendant in the execution. Whitalrr v. Felvay, 4 Ired., 182.
65. Where the execntionof a justice is on the same paper with
the judgment, it must be taken to refer to the judgment, and is
thus made certain as to the debt, interest and cdsts, and as to the
person who recovered the same. McLean v. Paul, 5 Iicd, 22.
30 ■ JUSTICES OF THE PEACE— ly.
6(^. Where the levy of a justice's execution was "on 450 acres-
land, adjoining the land of A, B and C," the court cannot see any
objection to the levy on its face, and cannot, without further
evidence, say that the land was not sufficiently identified under
the act. //;/(/.
67. Upon the return of a justice's execution levied on land, the
awarding oi the vend. expo, or order of sale imports that notice
has been given to the defendant in the execution, and esjiecially
is this so when the court expressly declares that such notice has
been given; and this is sufflcient to be shown by the purchaser
under the exocution in an action of ejectment, for parol evidence
could not be admitte;!, in such action, to show that the defendant
iu the justice's execution had notice of the levy on his land. Ibid.
68. A single justice has jurisdiction of debts,, though above
sixty dollars, if founded on a former justice's judgment. Mor-
gan V. Allen, 5 Ired., 156.
69. Where a justice gives a judgment against a defendant, for
a sum beyond his jurisdiction, the defendant may have an a(;tion
for any acts done under it, or he may resort to a writ of false
judgment, to have it set aside. If he choose to appeal to the
county court, he can there take advantage of the objection only
by plea in abatement, or, according to the established course of
our courts, under the general issue. Ibid.
70. When an execution from a justice has been levied on per-
sonal property, and is afterwards stayed according to law, the
levy is released, and the awner may sell the property to whom
he pleases. Hnrnilton v. Henry, 5 Ired., 218.
71. An execution from a;- justice was issued against a defend-
ant in his lifetime, and after his death, and before the return
day of the execution, it was, for want of chattels, levied o]i lands,,
the levy returned to the county court, and, after due notice to
the heirs, the court ordered the lands to be sold, and that a vend.
eajpo. issue for that purpose: held that the levy was good and
the proceeding regular, and that when the sale took place, it
should have relation back to the levy, and the proceeds should
be applied to that execution, in preference to executions subse-
quently issued from a court of record, on a judgment against the
heirs upon a sci./a. Parish v. Turner, 5 Ired., 279.
72. Where a party is dead, at the time of the levy on lands
under a justice's execution, notice to his heirs is as effectual as
if given to the party himself, when living. Ibid.
73. A justice's warrant, in a civil case, was dated June, 1843^
the judgment in June, 1844', and the execution in September,
1844, the judgment and execution being on the same paper
with the Avarrant: he'd that it did not appear on the face of
tliese proceedings that the judgment was void, so as to render
the officer who served the execution, guilty of a trespass. State
V. Conolhj, 6 Ired., 243.
JUSTICES OF THE PEACE— IV.. • 831
74. If the judgment conld be reversed by a writ of false judg-
ment, yet it eonld not be impeached collaterally. Ibid.
75. A justice has no jurisdiction of a question of guaranty.
Wall V. Nelson, 6 Ired., 3<)0.
76. In the case of the return of the levy of a justice's execu-
tion on land to the county court, though notice is directed by
law to be given to th-e defendant, no evidence is required of that
notice b\it the record oi the county court ordering the vend,
expo. Wa d v. Samiders, 6 Ired., o82.
77. The description, in the return of a constable, of a levy on
land, need not literally comply with the act of Assembly in such
cases, its requirements being substantially, that the land should
be sufficiently distinguished and identified. Ibid.
78. An account, though signed by the defendant, is not a
liquidated accouiit. so as to give a justice jurisdiction of it, when
over $()0 and under $100, when it does not show on its face to
whom it is due, nor thnt it is a settled account between the par-
ties. Midjtty. (ro7.vo», 7Ired., 143. (See Rev. Code, ch. (i2, sec. 6.)
79- A liquidated account, under the act, means oiie in which
the debt is adjusted, and the balance stated, without the neces-
sity of having recourse to extrinsic evidence. Ibid.
80. Where a return of a levy on land by a constable conforms
in its description to the act, setting forth among other things
that the hind lies on a creek, naming it, and it appears that there
are several creelcs in the county of that name, it is competent
for a party to an ejectment suit brought To recover the land sold
under that levy, to show which creek was intended when the
levy was made. PavlxS v. Blason, 7 Ired., 362. (See Rev. Code,
ch. ^2, sec. IG.)
81. Where a judgment was rendered by a justice upon a re-
turn of the constable on the warrant " exet;uted," but not hav-
ing the name of the constable signed to the return, it teas held
that this judgment was not void for the want of the constable's
signature. BIcElrath r. Buder, 7 Ired., 3! 8.
82. Where a judgment was obtained su.bsequently, upo^n the
judgment mentioned in the last section, it loas held that the de-
fendant could not be relieved from the last judgment by wait of
recordori, without first having theprior judgment reversed. I bid.
83. A justice's judgment, though not matter of record, deter-
mines between the parties their respective rights in the matter
of coutrovers}'; and neither party can, in a subsequent pi'oceed-
ing to enforce it, deny or con test 'the matters of fact ascertained
by it. Therefore, _ a detendant, who is sued upon a judgment
obtained before a justice, has no right to plead that lie was an
infant when that judgment was rendered. L/idwick v. Fair 7
J red., 422.
84. The officer making a levy on land, under an execution from a
justice, must make his return of the land leA'ied on, on the judg-
832 . JUSTICES OF THE PEACE— IV,
ment and execution, when tliey are on one and the same papefj
or on the execution when they are on different ones, or on some
paper annexed to the one or tne other, and which would consti*
tute a part of it, and have to be recorded with it; otherwise a
sale made under the execution will be void. Dickson v. Peppers,
7 Ired., 429.
85. Where a warrant was issued against three, and returned
"executed," and the judgment was entered against the " defen-
dant " in tlie singular number, and so was also the entry of the
stay of execution, and especially where the justice who rendered
the judgment was himself a party defendant, it loas held that, in
another warrant against one of the defendants on the original
cause of action, the plea of former judgment could not be sup"
ported, because it could not be shown that the former judgment
was against him. Thornasv. Holcomhe, 7 Ircd., 445.
86. A justice has no jurisdiction of such a contract as the fol-
lowing: " I, the subscriber, promise H. S., that if he can make
it appear that I had in my hands as constable, for collection,
three notes for $75 each, in favor ot the administrators of S. S.,
deceased, against J. S. and others, and endorsed by 13. B., then,
and on that evidence, I am to stand indebted to him. li. S., for
one of said notes, and interest thereon from April 2()th, 1842."
Spevcer v. limisudccr, 8 Ircd., 9.
87. One, against whoma justice's judgment has been obtained,
cannot attack that judgment collaterally, on the ground that he
was not duly served wilh process, or notified of the day and place
of trial: but to avail himself of these objections he must impeach
the judgment directly, by application to the ju^stice or to a high-
er tribunal, to set it aside or to reverse it. Hools v. Biases, 8
Ired., 88.
88. The jurisdiction of a single justice extends to all cases for
the recovei-y of money, Avhen the amount is within the sum des-
ignated in the act, when a general indclAtdlns assmvpsit will lie,
whether the contract is express or implied in law. Kitchell v.
Wallxr. 8 h-jd., 243. (See Kev. Code, ch. ()2, sec. 0.) _
89. Where an execution from a justice has been levied on land
and returned to the county court, where judgment is rendered
for the plaintilf, he may either have an order of sale, under
which he can only sell the land levied on, or he may take out an
execution as in other cases of judgment. If, however, he take
an order of sale, he may add a special f. fa. to the vend, expo^
Poivellv. Bavcjham, 9 Ired., 153.
90. If the jury can collect from the testimony, that the descrip-
tion of land levied on by a constable under a justice's execution
as fully identifies it, as' if the words of the act of assembly had
been literally followed, the levy must be pronounced to be good.
Jones V. Austin, 10 Ired., 20.
91. Where the return of a constable of a levy on land, under a
JUSTICES OF THE PEACE— "IV. 8S3
justice's execution, does not state that there was a M^ant of goods
and chattels, and the county court directs a venc/. exjm., the court
must be presumed to have acted right; to have acted upon a
•waiver of the search f<n- goods and chattels. Ihld.
92. A note for seventy dollars, payable in current bank notes,
1;hough not negotiable, is within tlie jurisdiction of a justice.
■State V. Corper^ning, 10 Ired., 58.
93. A justice, before whom a warrant is tried, is not permitted
to sign the name of a surety to the stay of execution, even
though the person, whose name is signed, afterwards assents to
it and pays the judgment. Bickmanv. Williams, 10 Ired., 126.
94. It seems tliat no one but the surety himself, or one for
liim in his presence, can sign his name to the stay of a justice's
■execution. Ihid.
95. Where a surety signs a stay of a justice's execution, witli-
out any request from the principal, and afterwards pays it, it is
a mere voluntary payment, and gives him no cause'^ of action
-against the principal. Ibid.
96. WJiere a principal gave his surety, for his indemnity, a lien
on some hogs, which the principal afterwards sold to a third
perscm, and the surety refused to deliver the hogs unless the
purchaser agreed to pay the debt for which he was bound, and the
purchaser agreed to do so, but failed, and the surety had fo pay
the debt himself; it was held that a justice liad no jurisdiction of
-J- suit by the surety, to recover the money from the purchaser of
the hogs. Ca le v. Hamilton, 11 Ired., 231.
97. Wlien a justice renders a judgment in a case where he
has jurisdiction, every thing is ju-esumed to have been done,
which it was necessary to do to make the judgment regular;
iiud his judgment, like one given in a court of record, is in full
force until reversed. Hiaft v. Simpson., 13 Ired., 72.
98. To authorize a sale of hunl by order of the county court,
there nmst have been a levy of the"^execution issued by the jus-
tice; and proof by the officer, tljat he adopted the levies endors-
ed on the executions, before issued on the same judgments, and
that he con>>idered them as his levies, is insufficient. In such case
the court had no power to make the order of sale, and its pro-
ceeding was a nullity. Brazier v. Thomas-, Busb., 28.
99. The penalty of $100 imposed by the act, Rev. Stat., eh.
34, sec. 73, to be paid to the owner for harl)oring a runaway
slave, is not within the jurisdiction of a single ju.stice. Branch
v. Hoaslou, Biisb., S5. (See Rev. Code, ch. 34, sec. 92.)
100. Where jurisdiction is Avithheld l)y law, a plea in abate-
inent need not Ijc put in, as a court, of if^ oicn mUion, will stay-
its action in such case Ibid.
101. Where the payee of a bond untruly endorsed thereon a
payment, for the purpose of bringing the 'amount within a jus-
tice's jurisdiction, upon a suit being brouglit before a justice, U
11*
834 JUSTICES OF THE PEACE— IV.
was held to be a fraud upon the law, and a plea in abatement
could be sustained. Moore v. Thomson, Busb., 221.
102. Where one, who had appealed from the judgment of a
justice, countermanded the appeal,, and at his request the justice
withheld it, it loas held that the judgment was- reinstated in full
force, and would maintain a suit founded thereon, and this, al-
though the appeal was countermawded upon an agreement of
the opposite party to refer the M'hole matter to arbitration, which
agreement he had violated. Sturgill v. Thompson, Busb., 392.
103. A justice's judgment on a warrant against an adminis-
trator, ascertaining the amount due, and having endorsed there-
on a suggestion of the defendant's intention to plead " no as-
sets," according to the act, Eev. Stat.,, ch. 46, sec. 25, is not a
final judgment, and no action will lie upon it. Anderson v.
Young, Busb., 408. (See Rev. Code, ch. 46, sec. 35.)
104. A term for years in land is liable to a \Qyj and sale by a
constable imder a justice's execution. Glenn v. Peters, Busb.,
457. (If the lease be of three years' duration, the constable's
levy must now be returned to court as in case of a levy on a
freehold. See Rev. Code, ch. 45, sec. 3.)
105. A sealed note for more than sixty dollars, signed by one
of two partners, cannot be given in evidence, as "an account
stated," by the partner who did not sign it, so as to sustain a
warrant against him upon it before a single justice. Heath v.
GreA.ory, 1 Jones, 417.
106. Although a person may waive a tort so as to be able to
sue in assumpsit in certain cases, yet no new jurisdiction can be
thereby acqmred, so as to give a single justice the power of try-
ing the case; for the rule is, that where the plaintiff has the elec-
tion to sue either in tort or contract, no court can have jurisdic-
tion of tlie action of assumpsit but one which can give a remedy
on the tort itself, as the same questions of law arise in each.
Mann v. Kendall, 2 Jones, 192.
107. Where an account consisted of several items, the aggre-
gate of which exceeded sixty dollars, it was held that the plain-
tiff might omit, or give credit for as many items as he chose, so-
as to bring the case within the jurisdiction of a single justice^
but that tliis could not be done where there was but a single
item, which amounted to more than sixty dollars. Waldo v..
JtVij^ 4 Jones, 173.
108. Under the book debt law, in which the plaintiff has to-
swear that the account contains a true account of all the dealing,
he cannot give a justice jurisdiction by omitting some of the
items. I hid.
109. A levy on land, endorsed on a justice's execution and re-
turned to court in the following words, " levied on three tracts
of land, containing three hundred acres on Caney Fork," is not
sufficiently definite to comply Avith the requisites of the act of
JUSTICES OF THE PEACE— IV. 835
assembly. Nor can it be made so by proof of facts collateral to
the description contained in the levy. CLaAen v. FhilUps, 4
Jones, 4M>.
110. Where a justice's judgment is appealed from, and before
the appeal is r(>turned to court the parties agree to withdraw it,
the judgment is restored. Matliis v. Bryson, 4 Jones, 508.
111. A deputy sheriff, having a justice's execution in his hands,
levied it on certain articles of personal property, and upon the
defendant's land, and sold some of the articles of personal prop-
erty and properly applied the proceeds, and as to the rest re-
turned that they were not sold for want of bidders, being claimed
by dififerent members of the defendant's family. The office of
the high sheriff having expired, tlie deputy as deputy of the
new sheriff, before the return day of the execution, made an en-
dorsement on it that the levy was "renewed," and retm-ned it
with both endorsements to the county court, where, after notice
to the defendants, an order of sale was made, and it was held
that the order was proper, and a sale under it good; Tysor v.
Short, 5 Jones, 279.
112. To antedate a credit on a note, so as to reduce the amount
of it to a sura within the jurisdiction of a justice, is in evasion of
the law, and the jurisdiction may be ousted by a plea in abate-
ment. Eamsour v. Barrett, 5 Jones, 409.
113. Where the judgment of a justice is susceptible of two
constructions, that is, whether it was intended as a judgment in
the defendant's favor on the merits, or, simply, for the costs, as
in case of a nonsuit, it is proper to hear evidence in explanation.
Carr v. Woodletf\ 6 Jones, 400.
114. Where the entry made by a justice trying a warrant on
a former judgment Avas, "dismissed at the plaintiif's costs," and
in explanation, the justice testified that on the trial before him,
the judgment sued on was produced and considered by him, and
he believing that it was vacated by the entry of an appeal which
he saw on it, made tlie above mentioned entry, which he intended
to be final between the parties; it ivas held that if this testimony
were true, it showed that the judgment was on the merits and
was conclusive. Ibid.
115. An acknowledgment by a person as surety fu- the stay of
a justice's execution, taken by a justice in the absence of the
judgment, entered on a separate piece of paper and signed by
the proposed surety, is invalid, and no execution can be issued
against such person so signing as surety. Murray v. Edmonston,
6 Jones, 515.
IIG. Where a justice's warrant was dated of a certain day,
and execution dated of the same day with the warrant, a judg-
ment on the same piece of paper with them, but not dated, was
held to be sufficiently certain as to the time of its rendition..
Clayton v. Fulp, 7 Jones, 441.
836 JUSTICES OF THE PEACE-IV-V-VT.
117. Where A agreed to let B put a saw mill and houses and
fixtures on his land for the purpose of sawing lumber, -'as long
as he wished," he having the right to taive way his improve-
nienta, it was held, that B had an interest for life in the easement
, on the land necessary to the milhng business, determinable, how-
ever, sooner at his option, and that his interest in theniill, houses
and easement on the land, was not liable to be sold by a consta-
ble under an execution from a justice's judgment, without a
return of the proceeiings to court and an order of sale there
made. Siancel v. Crdvert, 1 Winst, 101.
118. A justice has no jurisdiction of a guaranty. Jo mson v.
Olive, 1 Winst., 215.
See (Assumpsit — When it will or Avill not]ie,_23.) (Constitu-
tion Acts which have been declared constitutioDal, 5.) (Exe-
cution— Purchaser at execution sale, 71-75.) ((juaranty, 17.)
(Judgment— Of the effect of a judgment, 8.) (Judgment— Of
irregular, void and erroneous judgments, 1-6 ) (Justices of the
Peace— Of Justices' warrants in civil cases, 2.)
v. justices' executions levied on land and returned to court.
See (Justices of the Peace — Of their jurisdiction, judgment
and execution, 4-5-6-7-8-10-23-43-44-15-49-50-51-55-57-58
59-62-63-64-66-67--71-72-76-77-80-84-8U-9U-yi-98- 109- 111
-117.)
VI. OF THE RESPONSIUILITY OF JUSTICES.
1. A civil action is maintainable against a justice, acting in
his office out of court either maliciously, oppressively or cor-
ruptly; as, where he unjustly and riwlmously deprived a party of
his appeal. Hardisonv. Jordan, Conf Pep., 454, (512.)
2. Tlie justices of the county court are not obliged, by their
own exertions, to build and repair jails:; they are only bound to
use such means for the accomplishment of that end as the law
prescribes, viz, to lay taxes, appoint commissioners, &c,, and for
.in omission of one or all of these acts, it seems, they may be in-
dicted jointly as a body, but the indictment must charge which
of the duties prescribed by the act has been omitted; and it is
not suflicieut to charge generally, that they negligently and un-
.awfully did permit the jail to go to ruin and decay. State v.
Justices of Lenoir, 4 Hawks, 194.
3. Under the act of 1790, justices are liable to an action of
•debt, only where they have not taken any bond from the sheriff';
diey are not liable when they have committed a mistake hon-
estly in the form of it; but they are liable when guilty of mala
■ides or gross neglect. Governor v. 31cAffee, 2 Dev., 15. (See
Rev. Code, ch. 78, sec. 7.)
JUSTICES OF THE PEACE— VL— ETC.
4. It is gross iieo'ligence in the justices of the county coiu't to
take from their clerk, as a bond, an instrument having- no sum
of money inserted in the body; and they will be liable therefor,
as if they had taken no bond. State Bank v. Davenport, 2 Dev.
and Bat., 45.
5. The justices of the county court may be proceeded against
in a summary manner, under the acr of 1819, as the sureties of
their clerk, for permitting him to officiate as clerk, without giv-
ing bond, as prescribed in the act of 1790 and 1809. Ibid.
(See Rev. Code, ch. 78. sees. 5 and 7.)
6. Whether in granting an appeal and accepting the security
which the law requires, a justice does not act in a judicial char-
acter, and on a matter witidn his jurisdiction, qnoere. If he do,
then no action can be sustained against him for taking insuf-
ficient security; for no action can be supported against a judge
or justice, acting judicially and within the sphere of his jurisdic-
tion, however erroneous his decision, or malicious the motive
imputed to him. But if he do not, he is still not liable, if he
acted bona fide, and according to his best information. Cun/iing-
ham V. Bi/liard, 4 Dev. and Bat., 351.
7. Where a justice, in good faith and to preserve order, direct-
ed by pai'ol the sheriff to take into his custody and tie a person
who interrupted and insulted him in a disorderly manner, while
he was oificially engaged, it u'os held that he was not liable to
an action theretor. Furr v. 3Ioss, 7 Jones, 525.
8 The justices of a county are not responsible to the owner of
property, for injuries to it caused by defects in the public bridges
in their county. Kinsey v. Justices of Jones, 8 Jones, 186.
See (Limitations — When the statute will or will not bar, 25.)
(Indictment — When an indictment will lie, 37.) (Indictment —
Form and matters relating thereto, 97-153.)
LANDLORD AND TENAN I\
1. A landlord has no power to distrain torrent in tliis state,
the process of distress having never been adopted here. Dal-
(jleish V. Grandj/, Conf Rep., 22, (161.)
2. A lessor, who parts with the reversion, cannot recover rent
accruing subsequently. Marldand v. Crump, 1 Dev. and Bat., 94.
3. The distinction between an assignment and an under-lease
depends solely upon the quantity of interest which passes, and
not upon the extent of the premises transferred. When, there-
fore, the lessee of a house for seven years demises jx/r^ of the
house to another for the whole of his term, it is not an under-
838 LANDLOED AND TENANT.
lease, but an assignment pro tanto. Lunsford v. Alexander, 4
Dev. and Bat, 40.
4. A landlord has no li-en on tlie crop of his tenant for his rent,
though it may be reserved in kind, or in part of the crop.
Whether such an agreement is contained in, or is out of, the
lease, the lessor stands upon no better footing than the other
creditors of the lessee. Beaver v. Bice, 4 Dev. and Bat., 431.
(Such kinds of rent are now exempt from execution against the
lessee, except for taxes. See Eev. Code, ch. 63, sec. 1.)
5. Upon a lease for a year, the lessee acquires an estate in pos-
session in severalty during the term, so that the crops growing
or standing on the land are entirely his property; and if an exe-
cution in favor of a third person be issued {igi;iinst ihe tenant
during the year, it will bind the crop i'rom its /este, so that he
cannot afterwards sell it to another, or assign it, or any part of
it, to his landlord in payment of his rent. Ibid. (See the re-
ference in the note to the last section.)
6. As to the land, the particular tenant holding over stands
towards the remainderman as a tenant towards his landlord.
But the idea of such tenancy does not belong to the ownership
of distinct successive estates in personal chaTtels, and not arising
out of any contract between the parties. Montgomery \. Wynns,
4 Dev. and Bat., 527.
7. If a landlord during the continuance of the lease, and be-
fore the rent becomes due, convey the land to the lessee in fee,
the rent Avill be extinguished. Therefore, where a guardian
rented out land but took no bond or other security to himself for
the rent, and before the rent became due the ward came of age
and conveyed the land in fee to the lessee, it was held that the
rent, being incidental to the reversion, was extinguished by the
convevance of that reversion to the lessee. AHiion v. Coffield, 2
Ired.,301. ^ .
8. A tenant, v\dio is about to remove, has a right, where there
is no covenant or custom to the contrary, to all the manure made
by him on the farm ; it is his personal property and he may take
it with him. But it ceases to be his, if he leave it when he quits
the farm. SmitJndck v. ElUsoth, 2 Ired., 326.
9. The tenant may rake the manure into heaps, and the tak-
ing the slight portion of earth, which will te necessarily mixed
with it in the process, will not make him a tortfeasor. Ibid.
10. Where a lease was given upon condition that the lessee,
at the end of each year, should give bond and security for the
rent of the succeeding year, and at the expiration of one year
the lessee failed to give such bond and security, but the lessor
was absent and did not demand it, it loas held that no forfeiture
was incurred, it being the duty of the lessor to make the de-
jmand. Taie v. Croioson, 6 Ired., 65.
■11. The daw leans against forfeitures; and when the agency
LAXDLOED AND TENANT. 839
of the landlord is involved in any way in the act, which is to
work or prevent a forfeitnre, he ought so to act, as to make it
appear clearly that he means to insist on the forfeiture. Ihid.
12. The lessee should not be punished without a wilfid de-
fault, which cannot be made to appear, unless an actual demand
be proved, and that it was not answered. Ibid.
13. In an action for use and occupation, where it appeared
that one P. had leased the premises to the defendant for the year
1844, that in the latter part of that year he, with the knowledge
and consent of the defendant, rented the same to the plaintiff
for the year 1845, who leased a part of the same premises to the
defendant, wno occupied and held it under the plaintifi', it
loas held, that if this were a case in which attornment was neces-
sary, the defendant had attorned, and at all events, he was liable
to the plaintiff for the rent. Cooke v. Norriss, 7 Ired., 213.
14. In the case just above stated, the defendant abandoned
the premises before the end of the year 1845, and no specific
contract being proved as to the time he should enjoy the prem-
ises, which were a wharf and warehouse in a commercial town,
if luas held, to be proper to leave the question, as one of fact for
the jury, for what time the parties intended that the lease should
continue, and that the court could not say that the lease contin-
ued until the end of the year. Ibid.
15. In an action upon a covenant for rent contained in a lease,
it is compe-^ent for the defendant to show that, at the time of its
being ma 1j, the plaintiff had no title to the land; provided he
can sh >w at the same time that, in consequence thereof, he could
not ea:c!r, or tiiat having entered he was evicted by a paramount
ti'ic. Siizud V. Jeaidna, 8 Ired., 27.
10. In every plea of eviction there must not only be an aver-
ment that the plaiutiff had no title, but also that in consequence
thereof the lessee was evicted; as the defence depends upon
both. I hid.
17. Where A rents out land belonging to B, the latter cannot
recover against the lessee upon a count on the agreement for
rent of the lanl, because there was no privity between thelessee
and B, unless B can show A acted as his agent. And for the
same reason B cannot sustain a count upon an iraphed assump-
sit against the lessee, there being no privity between them, and
there baing an express contract between the lessee and A. Har-
dy^. Williams, d h-iid., 177.
18. What notice to quit is required from a landlord to a tenant
in this state, quaere. Phelps v. Long, 9 Ired., 22(5.
19. Whire a lease is made and it is agreed that the rent is to
be paid in a part of the crop, the contract is executory, and the
title to the crop made is in the lessee until the lessor's part is
separated and allotted to him, and, therefore, before that time,
±he lessor Jias no jight to take possession of any part of the crop,
840 LANDLORD AND TENANT.
without the consent of the lessee. Bossy. Sivnrivger, 9 Ired., 481' .
20. Where a person agrees to work on the land of another for
a share of the crop, the cropper cannot convey a legal title to
his share of the crop to a third person, before an actual division,
and appropriation. And the owner of the land, who made ,the
contract, is not estopped to deny the right of such assignee to
recover at law. McNeeky v. Horf, 10 Ired., 63.
21. A cropper has no such interest in the crop, as can ))e sub-
jected 1o the payment of his debts while it remains in mass, for„
until a division, the whole is the property of the landlord.
Brazier v. Ansley, 11 Ired., 12.
22. Where the owner of land, to which a ferry is annexed as
a franchise, leases the land together with the terry, he is not
responsible for any damage sustained by a third person, from
the mismanagement of the ferry while in possession of the
lessee. Big(/s v. FerreU, 12 Ired., 1.
23. Where there is a lease of a house, and a person lives in it
by an assignment or underletting from the lessee, or by her
license merely and at her will, he is concluded from questicming-
the lessor's title; tor he came in under him, and cannot withhold
the possession, when the term has expired or been legally sur--
rendered. Kbtge v. Lachenoiir, 12 Ired., 180.
24. A contract was as follows: A was to cidtivate a plantation
belojiging to B, in the year 1849, and was to furnish the means.,
and materials to make the crop,, as far as he was able, and such
as were not furnished by him were to be furnished by B. At the
end of the year B was to set"! the crop and have one-third, and:
then deduct all the expenses and pay the residue to A; and it
was held th'dt this was not a leasing of the land by the one party
to the other, nor the case of hiring a laborer by the owner of the-
land; but the parties were joint owners of the crop; and B hav-
ing-survived A had a right to the property as joint owner, in
order to dispose of it according to the contract. Moore v. SpruiU^.
13 Ired., 55.
25. Turpentine trees are the subject of lease. Books v. 3Ioorey
Busb., 1.
26. Where A demised to Bin writing a tract of land, and
excepted thereout a certain lot, reciting that one-halt thereof he
had in writing devised to J. S. (and which had been surrendered
by J. S.) and the other half he had by parol agreed to. lease to
J. D., to whom, after the said lease to B, he demised in writing-
the entire excepted lot; it was held that the excepted lot did not
pass in the demise to B, even though the recitals were false, and
that B could not recover it from one claiming under J. D.
Hargrove v. Miller, Busb., 68.
27. Where the forfeiture of a lease is incurred by the non-pay-
ment of rent, if the landlord receives frona the lessee rent subse^
LANDLORD AND TENANT. 841
quently accruing, tlie forfeiture is thereby waived. Rirlhury v.
Barilnj, Busb., 418.
28. Where the lessee of a lot for a term of years covenanted
that he would not remove from the lot any l)uilding-, Avhich he
might put thereon, until the rent was paid, and a building put
thereon by him during such lease was removed by a tliird per-
swi with the consent of the lessee, the rent being unpaid, if was
held that such third person was liable in damages to the lessor
lor siieli removal; and that the lessee was a competent witness
for the lessor against such third person. Forbes v. Wi'liams, 1
Jones, 393.
21). An agreement between A and B. that B shall cultivate the
turpentine trees, that is. make and save tnrpentine on the land
where A lives for one year, A giving him half of the turpentine,
&c., he may save for his labor, &c., is not a lease of the land or
of the pine trees to B, and he, therefore, cannot maintain tres-
pass qu'ire d'lasumf regit against a person who enters and collects
tuipentine from the trees. Denton v. StruMand, 3 Jones, 61.
30. Where a person had rented a place to another to make a
crop, of which the parties were each to have a half, and the own-
er of the land was to furnish a horse, it nns held that a tenancy
was created, and that the tenant might bring trespass qnaredau-
sum f regit against his landlord for an unkuvful oitry. Hatchell
V. Knnln'ouglt, 4 Jones, 1(^3.
31. Where a paper writmg was executed by the owner of land,
acknowledging the receipt of a certain bond for money in pay-
ment for the "purchase of cypress timl)er" on the land, with'a
further agreement to let the purchaser have a certain number of
years "to cut the timber olf of the land," it was held that it cre-
ated a lease for years, so as to enable the purchaser,, or his as-
signee, to occupy the land and take the cypress timber for the
time stated in the paper writing Bloving v. Ward, 5 Jones, 272.
32. The act of 1824, by which the long terms for years, cre-
ated by the Tuscarora Indians, are, for certain purposes, made
real estate, has no effect upon the reversions expectant on those
terms. Burnett v. Thompson, 6 Jones, 210, S. C. and S. P. 7
Jones, 407.
33. Where a tenant entered into the occupation of a room in a
warehouse, under an express lease from nunith to month, and he
continued the occupation for more than two years, he cannot be
considered as a tenant from year to year, and thus be entitled to
a six months' notice to quit. Jones v. WiUis, 8 Jones, 4;>0.
34. ^?<cere, as to what notice to quit a tenant from nionth to
month is entitled. Ibid.
See (Assumpsit, 4-19-39.) (Ejectment — Of the defence and
herein of the consent rule, 20-21-31-33-34-35-39-40-41.) (Es-
toppel— By matter other than by record or deed, 3-G-8-14-
15-17-18-21-2J2.-2S-29-30^31-35.) (Registration-, 20-25-26.)
(Surrender.)
842 LAECENY.
LARCENY.
1. The judges were equally divided upon the question, whether
a borrowing, with intent to steal, will support a chai'ge for lar-
ceny— Is a trespass in the taking an e=!sential ingredient in the
offence?— 5';'afe v. Long, 1 liay., 154. (177.)
2. Larceny may be committed in stealing a slave: therefore,
in an indictment under the act of 1799 for stealing a slave, it is
not necessary to add " with the intention to sell or to dispose of
to another, or to appropriate to his own use," as that is implied
in the charge of stealing. Slate v. Hall, Tay., 126, (7G.) S. C,
2 Hay., 105, (2f)5.). (See Rev._ Code, ch. 34,'sec. 10.)
3. A person cannot be convicted on an indictment for stealing
that which has neither an intrinsic nor artificial value, as, for
instance, "one half ten shilling bill of the currency of the State."
Stoie V. Bnjaut, 2 Car. L. R, 2(59, (249.)
4. A person may be convicted for stealing a runaway slave,
knowing him to be a runaway, and to whom he belonged. State
V. Davk 2 Car. L. R., 291, (271.)
5. Larceny cannot be committed unless the thing be taken
against the will of the owner. Hence if the thing be sent by
the owner, for the purpose of entrapping the taker, it will not be
larceny. Drld v. Hamilton, N. C. Term, R., 31, (471.)
6. Larceny or seduction under tlie act of 1779 cannot be
committed of a slave, where the owner, through his agent,
consents to the taking and asportation, though such consent was
given for the purpose of apprehending the felon ; but when the
defendants bring a slave to a particular place, after such assent
of the owner, but in pursuance of a plan matured before tlie as-
sent given, if the jury are satisfied that both defendaiits were
privy to the felony and equally concerned, they may properly
convict them. Sl(fte v. Jerna.fjan, N. C. Term, 44, (483.) (For
the present law on the subject, see Rev. Code, ch. 34, sec. 10.)
7. One who procures or instigates a petty larceny to be com-
mitted is a principal. State v. Barden, 1 Dev., 518.
8. Where a shawl was dropped in an exhibition room, and
picked up by the defendant, placed in a conspicuous situation,
and afterwards clandestinely appropriated to his own use, it was
held that he was guilty of larceny. Stcde v. Bop.r, 3 Dev., 473.
9. In an indictment for grand larceny, one cannot be convic-
ted as a principal, unless he were actually or constructively j)res-
ent at the taking and carrying away of the goods. His previous
assent to, or procurement of, the caption and asportation, will
not make him a principal ; nor will his subsequent reception oi
the thing stolen, or his aiding in concealing or disposing of it,
have that effect. State v. Eardtn, 2 Dev. and Bat., 407.
10. Witere one got staves upon the land of another, upon eon-
LARCENY. 843
tract to have half for getting- them, it teas held that, while they
remained on the land undivided, the manufacturer was neither
a tenant in common vith the owner of the land, nor a bailee of
the staves; and that, the]-efore, he, or any other person with his
connivance, might be guilty of larceny in taking them. State v.
Jones, 2 Dev. and Bat., 544.
11. Where one labors upon the farm of another upon an agree-
ment to have a share of the crop, the property in the entire crop
remains in the employer, before the share of the laborer is sepa-
rated from the general mass. Ibid.
12. The presumption that he who is found in the possession of
stolen goods, recently after the theft was committed, is himself
the thief, applies ordy when this possession is of a kind which
marrifests tliat the stolen goods have come to the possessor by
his own act, or, at all events, luith Ids undouhtul concurrence. Slate
V. Smith, 2 Irod., 402.
^ 13. Where the defendant, and two of his sons who lived with
him, were indicted for stealing tobacco, and the tobacco, which
was stolen in the night, was found the next day in an outhouse
of the defendant, occupied by one of his negroes, and in which
he kept tobacco of his own, and the tobacco so found was claimed
by him as his own, though proved to be the tobacco that was
stolen, it icas held to be error to charge " that the possession of
the stolen tobacco, thushMvuliu the defendant's possession, raised,
in. law, a strong presumption of his guilt. Ibid.
14. In an indictment for larceny, when the property stolen is
alleged to be the property of A B, and that the defandant " did
feloniously steal, take and carry away the said property," it is a
sufficient description of the offence, witliout saying that the prop-
erty was actually in the possession of A B, or that it was actually
taken out of his possession, the law implying his possession from
his ownership. State v. GoIUmorc, 7 Ired.,'l47.
15. An indictment for stealing a hog is well supported by
showing that the defendant stole a shoat. State v. Gadet 7
Ired., 210.
16. Where an indictment alleges the property stolen to be the
property of Elizaheth M., and the evidence shows it was the
property of a woman called Betsey iM., it nuist be left to the jury
to decide, whether the person so described was known by both
names. Ibid.
17. In an indictment for larceny, the christian and surname of
the party injured, if known, must be stated, and the name so
stated must be either the real name, or that by which he is
usually known; as either is sufficient. Ibid.
18. In an indictment for larceny the goods alleged t^^ be stolen
may be described by the names, by which they are known in
trade, and the same principle extends to articles known by par-
ticular names in all the arts, pursuits and employments of life.
State V. Clark, 8 Ired., 226.
844 LAECENY.
19. Where a man was indicted lor stealing a "bull tongue,"
and it appeared in evidence that he had stolen a particvdar kind
of plough share, usually known in the neighborhood in which he
resided l)y that name, it ivas held that the allegation of the in-
dictment was well supported by the eviden-ce. I bid.
20. An indictment will lie under the statute, for feloniously
taldng and carrying away a runaway slave "with intent to dis-
pose of him to another," etc , even though the taker did not know
who was the owner of the slave. State v. JViJliams, 9 Ired., 140.
21. The possession of a stolen thing is evidence to some
extent, against the possessor, of a taking by hiai. Ordinarily,
it is stronger or weaker in proportion to the period intervening
between tlie stealing and the finding in the possession of the
accused; and after the lapse of a considerable time, befCre a
possession by the accused is shown, the law does not inier his
guilt, but leaves that question to the jury under all the circum-
stances of the case. 1 bid.
22. An i]\dictment under the statute for the abduction of
slaves, which charges that the defendant " by violence felon-
iously took," is as good as if it had averred that the defendant
" feloniously by violence took," &c. Ibid.
23. In an indictment relating to the larceny or abduction of a
slave, in describing hinv as the property of A. B., he may be
said to be " the property of A. B-.," or of the goods and chattels
of A. B., after laying the value of the slave. Ibid.
24. In such an indictment, the words "with an intent to sell
and dispose of the said slave" are sufficient Hid.
25. Tiu'pentine, which has run out of the trees into boxes cut
into the tree for the purpose of receiving the liquid, is the sub-
ject of larceny. But to support an indictment for stealing two
barrels of turpentine, it must appear that the turpentine was in
barrels when it was stolen, not that it was dipt from the boxes
in small quantities from time to time, and then deposited in bar-
rels. fState V. Afoore, 11 Ired., 70.
26. To constitute a capital felony in the case of stealing, &c.,.
slaves, the taking and conveying away of the slave must be
from t'le pofisef^sion of the owner, 'f he felony is not created by
our statutes when, before the taking or carrying away, the owner
has lost the possession of the slave by the act of another, even
though such an act was procured to be done by the person
charged with the felony, for a felonious purpose. Neither the
act of 1779, Rev. Stat., ch. 34, sec. 10, nor the act of 1«48, ch..
35, constitutes a felony in such a case. State v. Martin^ 12 Ired.,
157- (The law is now altered. See Kevised Code, ch. 34,
sec. 10.)
27. Under an indictment for stealing and carrying away a
slave under the act, Rev. Stat,.ch. 34, sec. 10, the venuemxxf^i be
laid, and the prisoner tried, in: the county where the original fe-
LARCENY.-LEASE. Mfy
lonious caption took place. State v. Graves, Bn^h., 19] . (See
•Rev. Code, ch. 34, sec. 10.)
28. The act of 1852, ch. ^7, concerning the stealing of slaved),
is not a repeal of the act, Rev. Stat. ch. 34, sec. 10, on that sub-
ject. State V. Hester, 2 Jones, 83. (See Rev. Code, ch. 34, sec,
10.)
29. Acts, which wonld constitute one an aider or abettor in grand
larceny, would m;ike him a principal in petty larceny. Sfofe x.
S'tatv, 4 Jones, 440. (The distinction between grand and petty
larceny is now abolished; see Rev. Code, ch. 34, sec. 26.)
30. An indictment for larceny charging, in one count, the
thing stolen to be "a certain writ of/, fa. belongiiig to the su-
erior court," in another count, "a certain process of and belonj>-
c.g to the superior court," and in a third "a certain record of
.id belonging to the superior court," is too vague and indefinite
) be supported. State v. McLeod, 5 Jones, 318.
31. Where the prosecutor lost a carpet bag on the public high-
.vay, and directed a person to get it for hinC which he did as the
prosecutor's bailee, but afterwards concealed the article and de-
nied that he had it, it uxis held that this was -only a breach of
trust, and not a larceny. State v. Enrjland, 8 Jones, 399.
32. It seems, that if, in the case just above stated, the bailee
had opened the bag, and taken out some of the articles contained
in it, iiniiiio furandi, it would have been a larceny. Ibid.
33._ An indictment under the Revised Code, cli". 34, sec. 20, for
stealing a bank note of a certain denomination and value, with-
out setting forth by what authority the bardv note was issued,
cannot be sustained. State v. Brown, 8 Jones, 443.
See (Accessory, 3.) (Indictment— In what cases an indict-
ment will lie, 1-4.) (Indictment-^Form and matters relating
thereto, 5-19-49-52-73.) (Indictment— Of the trial, verdict and
judgment, 16-85-106.) (Indictment— Plea of former acquittal
or conviction, 3.) (Indictment— Of quashing indictments, 3.)
(Indictment — Variance between the allegations and proof, 9.)
(Evidence— In criminal proceedings and indictments, 4-27-'46--
47-56-92-99-121.)
LEASE.
See (Landlord and Tenant.)
84ff
LEGACY— I.
LEGACY.
I. Constrnction, as to what passes and
who takes.
II. Whetlier vested, contingent or exec-
utory.
in. Of the assent of the executor, and
its effect.
IV. When a legaf^y will be presumed to
have been paid or satisfied.
V. Legacy " after debts paid," what
fund liable for them.
VI. For the separate use of a married
woman.
VII. Lapsed, void and adeemed legacies.
I. CONSTRUCTION AS TO WHAT PASSES AND WHO TAKES.
1. A bequest as follows: "I give all the rest of my negroes
and their increase to be eqnally divided among my children, the
survivor or survivors of them, and their heirs Ibrever," ivas held
to vest in the children at the death of the testator; and, upon the
successive deaths of two of them, their respective shares were
distributed between his,- or her, mother and brothers and sisters.
Gorhom v. , Liar., 52. (49.)
2. The word " heirs," when used in a will of personalty, is a
word of limitation always, and vests the absolute property. Cut-
lay- V. Cutlar, 2 Hay., 154, (334.)
3. A bequest of a negro "and also" of lands, for life, passes on-
ly a life estate in the negro by force of the words "and also."
Anonmnons, 2 Hay., 161, (340.)
4. If a bequest of a female slave be to A, and her future in-
crease to B and others, the increase born after the death of the
testator will go to B and the other legatees. Ilidlington v.
/Shipman, Conf Eep., 113, (243.)
5. The children of a female slave who is specifically be-
queathed, which are born after the making ot the will and be-
fore the death of the testator, do not go with the mother, but
pass to the residuary legatee. Jonefi v. Jones, Conf Kep., 310,
(396.) (Altered by Rev.'Code, ch. 119, sec. 27.)
(). Where a slave was given "to A for life, and after his death
to his son B and his heirs, and in default of his issue to his
brothers and . sisters then living," it to as held that "then" was
used as an adverb of time, and pointed to the default of issue at
the death of B, and that therefore the limitation over was good.
Morekmdv. 31o, ■viand, 1 Murph., 48. S. C. 2 Hay., 375, (573.)
7. A gives his estate to his daughter, and if she "dies without
having heirs" then over; the limitation over is too remote, and
the whole interest vests in the daughter. Bryson v. Ddvidson
1 Murph., 143. J ^
8. A gave all his estate to be equally divided between B, C,
D, E's heirs and F, lield that the division wvas to be made per
capita, by wdiich each of E's children took an equal share with
LEGACY— I. 847
B and the other legatees. Whitchurst v. PrikUrdr 1 Miirph.,
383.
_ 9. Where a testator bequeathed to his wife "two negroes, du-
ring her natural life, and one half the tract of land I now Hve
on, during her natural life, and then to return to my son W,"
it was held that the limitation to the son was confined to the
land, and the remainder in the negroes was undisposed of
Sneed v. Harris, N. C. Term E,, 240, (672.)
_ 10. A legacy of a slave to a wife for life, and then to be eman-
cipated (m a way not allowed by law) does not vest in the wife
any greater interest than what i's expressed, to wit, for life, and
after her death the executors may recover them, in an action of
detinue, from her legatee. James- v. Blasters, 3 Elurph., 110.
11. Where one put a female slave in the possession of another,
and, by his will subsequently made, bequeathed that slave to the
same person for life, and proceeded, "after her death I give the
same slave and her increase to" &c., it teas held that the'ipsue of
the slave, born between the date of the will and the death of the
testator did not pass to the legatee for life. Foicell v. Cook 4
Dev., 41)9.
12; Where a testator, by one clause of his will, gave his daugh-
ter two slaves absolutely, and by a subsequent clause gave her
another, and proceeded as follows: "which negro, together with
those I formerly lent to her, to be divided between her children,"
tt was held that parol evidence that the slaves mentioned in the
tirst clause had, before the making of the will, been lent by the
testator to his daughter, was admissible, and that fact being es-
tablished, that the second clause reduced her property in them
to an estate for life, v/ith remainder to her children. ''Blorton v
Edwards, 4 Dev., 507.
13. Abequest to a son "of every article T have already pos-
sessed him with," will not, by the mere force of these words
pass a slave, which the testator erroneously supposed he had
emancipated, and which he had placed witli the son for protec-
tion only; and m such case, whether it was the testators inten-
tion to pa.^s the slave, is a question of fact. White v. While, 1
Dev. and Bat., 200.
14. Where a testator bequeathed certain slaves to the children
ot his daughter, and expressed his wish that his son-in-law
should not have "the use or control" of said slaves, and then
subjoined, " but if she survives him, then my said dauohter may
. 7?.? !!rf ^'^''^'t^^'^''^''' ^"""" ^^^^ widowhood," it was
held that the daughter did not take a legal estate in the slaves
upon which an action at law could be sustained, but that her
interest was only an equitable one, and could be protected only
in a^court of equity. Bennett v. Williamson, 1 Dev. und Bat 28'>
lo. A bequest by a testator to his wife of "a girl named Han-
nah, and my horses, &c., and my plantation, with all the lands
848 LEGACY— T.
adjoining to it, during her lifetime," passes but a life estate m
tlie negro girl. Black v. Bay, 1 Dev. and Bat., 334.
16. A bequest by a testator to )iis wife in the following words:
" I wish her to get Stanford in her third of the property it she
chooses," is not a specific legacy of the slave t(> the wife, but
only gives her a right to take him at a fair valuation, tuid, if that
valuation be more than her share, she must account lor the sur-
plus. Young v. Carson^ 1 Dev. and Bat., 360,
17. A direction that the testator's infant grandchildren shall
1)6 "raised" and "taken care ol" and "educated" creates a
charge upon the estate for such raising and education during
their"" minority. Cloud y. Martin, 1 Dev. and Bat.^ 397.
18. Where a testator bequeathed Nell, a female slave, to his
" wife during her natural life or widowhood," and in a subse-
quent claiiserof his will provided that the slave should become
the property of his "daughters A and B, at their mother's death,
or at the time that his son Thomas arrives at sixteen years of
age, and her. increase, if any before that time, to be equally di-
vided between the rest of his children." " If the widowhood of
my wife should terminate before her natural hie, Nell shall re-
main in this place for the support of my children, who shall live
here." B irus held that the increase, born alter the arrival of
Thomas at the age of sixteen years, but iTefore the death of the
widow, would belong, aftei" the death of the widow, to A and B>:
particularly as that construction would harmonize with the rest
of the will, which seemed to aim at an equal distrilmtion of the
testators property among his children. Gibboiuw Ihinn, 1 Dev.
and Bat., 446.
19. The state of the testator's family, at the time of making
his will, may be attended to in settling its construction. The
whole will may also be examined, and the state of the property
looked at, if it appear on the face of the will; not if it be dehors^
unless to explain a latent ambiguity. Jbid.
20 A residuary clause in a will, by which all the remainder
of the testator's real and personal estate w«s directed to be sold
by his executors, will not pass slaves which he had given to a
child prior to 1806, but which he had subsequently obtained
possession of, and held as bailee until his death, nor will it au-
thorize tiie sale of the said slaves by the executors, so as to de-
feat the title of the donee under the act of 1784. Bell v. Cul-
pepper, 2 Dev. and Bat, 18.
21. Where a legacy is given to a described class of individu-
als, as to the children of A. B., and no period is assigned for the
division, the persons answering the description at the death of
the testator, that is, the children of A. B. then born, or in venttf
sa mere, are alone entitled under the bequest. But when the
enjoyment of the legacy is postponed to a particular time, as to
the death of A. B., then, unless there be in the will indicationa
LEGACY— I. 849
of a different intent, not only those who answer in the descrip-
tion at the death of the teKstator, but those who are born after
his death, and before the period of division, are all entitled to
take; and if any, who are thus entitled to take, die before the pe-
riod of distribution, ai.d there are no words in the will indica-
ting an ulterior disposition of their interests, as to the survivors,
tliey are vested interests, and are transmitted to their represen-
tatives. Knight v. Wall, 2 Dev. and Bat., 125.
22. A bequest by a testator of a negro girl and her increase to
liis daughter for life, and after her death, that "the girl shall go
to the children of his daughter," will carry the increase of the
girl, as well as the girl herself, to the children after the mother's
death, unless it appear from other parts of the will that the tes-
tator intended otherwise. Ihld.
23. Where a testator bequeathed his negro woman Dice to his
daughter Betsey, and added, " the first born of Dice that is liv-
ing hereafter to fall to M. S.," it loas held that the intention of
the testator was to give to M. S. the first child that should be
born alive after the time he was speaking, to wit, the date of
the will, and that she would take such first born child whether
born in the life time of the testator, or after his death. Pearson
V. Ihytrn; 4 Dev. and Bat., 60.
24. Where a testator, after lea\ang all his slaves to his wife
for life, and giving to his son, after his wife's death, a negro
woman named Luck, bequeathed to his daughter as follows:
"After nay wife's decease, I give to my daughter, M. M, C, one
negro boy, and if my negro woman Luck should have another
child, 1 give it to my daughter M. M. C;" and after the testa-
tor's death, and during the life of his widow, Luck had two
children, of whom the elder died in the lifetime of the widow,
and the other survived her, it was held, that by the bequest only
one, and tliat the first born child of Luck, was given to the daugh-
ter; that in such first horn child she took a vested interest imme-
diately upon the death of the testator; and that although such
child died in the lifetime of the widow, yet the dangliter had no
title, upon the death of the widow, to the other child of Luck,
which was then living. Conner v. SdclnveU, 4 Dev. and Bat., 72.
25. Where a testator, in one clause of his will, lends to his
wife all his estate, real and personal, tor life, and in a subse-
quent clause provides, that after the death of his wife his son
Khali have a particular negro woman, but that her second born
child, after that time, shall be given to his grandson, it seems
that the widow takes a life estate in the child. White v. White,
4 Dev. and Bat, 401.
2t). A bequest of slaves to the testator's daughter, "for her use
and benefit during her natural life, and then to descend to the
heirs of her body, if any, if not any heirs, then to her lawful
12*
850 LEGACY— I.
heirs," gives her the whole and absohite interest in the slaves.
Floyd V. Thompson, 4 Dev. and Bat., 478.
27. Where a testator, after giving certain legacies to his chil-
dren, and directing that the residue of his estate shoidd be
equally divided between them, upon their accounting for the
advancements Avhich they had received, added, " this direction
is not to apply in case a negro given or lent shall die before me,
that being my loss; but where any of the said negroes shall have
been sold, or suffered to be sold, they shall be charged at their
value at the period of such sale, except in case of my grandson
T., son of my deceased son, G. B., who is to pay to my executors
$500 in full of all advancements made to liim or to his father,''
it was held that the grandson was bound to account for only the
sura of $500, and not for that sum in addition to the value of two
negroes which had been given to his father andsokl by him, and
that no parol evidence could be received to show, that the testa-
tor intended his grandson to account for the $500 in addition to
the value of the said negroes given to his father, Blacknall v,
Wyche, 1 Ired., 94.
28. Where a testator, who had, upon the marriage of his
daughter E., placed a negro woman, Fanny, in her possession,
bequeathed as follows: "I lend luito my daughter, E., two ne-
groes named Fanny and Luke, during her natm-al life, and their
increase. Fanny is now in her possession, Luke she is to receive
after mv decease, and if she should never have a lawful heir
begotten of her own body, for them and their increase to be re-
turned to my five children," &c. It was held that the children
of Fanny, born whilst she was in the possession of his daiighter
and her husband, but before the death of the testator, passed
under the bequest to the daughter. Hurdle v. Elliott, I Ired..
174.
29. A testator, after bequeathing certain negroes to his wife
for life, or during widowhood, bequeathed as follows : " I wish
for the negroes lent to my wife, if they do not behave, to hu
hired out. I also wish for all the negroes not given to be hired
out as soon as they will bring anything. And after the death
of ray wife, or marriage, I want all my property, not given away,
to be equally divided among my girls." The negro, for which
this action was brought, was one of those directed to be hired
out. lidd, that the daughters had only an interest in
remainder after the death or marriage of the widow, and that,
therefore, the plaintiff, Avho claimed under a conveyance from
the husband of one of the daughters, could not bring trover for
the negro during the lifetime of the widow, or while she remain-
ed unmarried. Smithivick v. Biggs, 1 Ired., 281.
30. Where the surplus of an estate is left by will, to be equally
divided " between the heirs of A. B. and the heirs of C. D." the
LEGACY— I 851
'«hikli-en, or heirs, of A. B. and C. D. will take per cajnta and not
per stirpes, H(jhbs\. CraUje, 1 Ired., 332.
31. Where a testator bequeathed as follows: "I bequeath
luito my wife, Susanna, all my estate and effects remaining in
my executor's hands after all my just debts are paid, the said
property to be and remain my beloved wife's during her natural
life; she is not allowed to sell nor dispose ot said effects in any
shape whatever, agreeable to this my last will, with the excep-
tion of a Jiegro boy child by the name of Larkin. I then further
will, that at the decease of my wife, Susanna, command my exe-
ecutors to make an equal distribution of my said property be-
tween my five lawful heirs;" and nothing further was said aljout
Larkin, it was held, that the absolute interest in the boy Larldn
passed to the widow, Susanna. MaWds v. Rhea-, 1 Ired., 394.
32. Where a testator bequeathes a negro woman and her in-
<yrease, and there are no other words in the will to explain his
meaning, only the increase born after the death of the testator
willpass. Cohw Cole, 1 Ired., 460. (Increase born between
the date of the will and the death of the testator will now pass,
unless a contrary intent appear in the will, see Rev. Code, cli.
119, sec. 27.)
33. A testator bequeathed as follows: "I hereunto confirm the
property I have heretofore given to my daughter Susan, and one
dollar to her, her heirs and assigns forever." Under this be-
quest a negro girl named Fan was claimed ; and it was proved
that Fan's mother had been called in the family Susan's negro;
that whtvn Susan nsarried, this mother had been sent home with
her and remained with her some time, and was afterwards taken
back by the testator and continued with him till his death,
claimed by him as his own ; that the testator had quarrelled
with Susan's husband; and, besides the mother of Fan, some ar-
ticles of household furniture had been sent home with Susan,
which had never been reciaiuied. It also appeared that in simi-
lar bequests to his other children, four in number, he not only
gave them in geiieral terms the property he had before given
tnem, but added ''including the negroes," (naming them.) Held
that the testator did not intend by this bequest to give any negro
to his daughter Sufcfan. Kinsey v. Bhem, 2 Ired., 192.
34. Parol evidence cannot be admitted to add to, sid)tract
from, or modify a testamentory disposition, but it is properly ad-
missible to identify the things therein described. Ihid.
35. A bequost of personalty to A for life, and at liis death, " if
lie should die leaving heirs lawfully begotten of his body, that
the said property shall be equally divided between them," is a
limitation for life only to A, with remainder to his children a«
tenants in common. Swain v. liascoe, 3 Ired., 200.
36. The general rule in such cases as the last is, that wher-
ever words in a will would create an estate tail in land devised,
852 LEGACY—I.
the same woitis in a bequest of chattels will carry the absolute
estate; but an exception to this rule is, where farther words of
limitation have been superadded, as "executors, administrators
and assigns," or the words " equally to be divided," and the
like. Ibid.
37. Where a testator bequeathed as follows: ''I lend to my
daughter, B. G., one negro Avoman and her increase that she may
hereaiter have," it ivas held tliat the bequest was not void for
uncertainty, but that the legatee, in order to identify the woman,
might show that the testator had bequeathed all the negro
women he had, except one, specitically by name to other lega-
tees, and tliat the one not named in the will passed under the
above bequest. Lillard v. Reynolds, 3 Ired., ?,(M\
38. Where a father had in his life time made gifts to several
of his children, of which gifts some were perfect {>nd others not
strictly according to law, and then by his will bequeaths prop-
erty specihcally to each of his children, indicating an intention
to malve an equal distribution among them, referring to and ta-
king into consideration what he had before given them, it was
held that the will ratified and confirmed all the previous gifts,
including certain slaves put into the possession of one of his
daughters upon her marriage. Simpson v. Bosicell, 5 Ired., 49.
39. A testator bequeathed as follows: " I do lend to B's four
children, C, D, E and F, all my estate, real and persouiil," and
then directed that the estate should be kept together until C ar-
rives at twenty-one years, and then to be equally divided among
the children, to them, their heirs and assigns forever, it was held
that the word " lend " did not tie up the estate to the death of
the children. Cox v. Marks, 5 Ired., 361.
40. A testator,, having advanced to his five children by hia
first wife property, which he valued at $2,000 for each, directed
by his will that certain persons, to be appointed commissioners
by the county court, should, upon the marriage of any of his
children by his last wife, advance them property not to exceed
$2,000 for each, so that upon a final division there should be
equality among all his childi'en. All the valuations were to be
made upon the same scale or principle. It tvns held that the com-
missioners, appointed by the county court, did right in fixing
the valuation for the younger children at .$2,000 each,.at the time
the allotment was made. Mayo v. May&, G Ired., 84.
41. Where a testator, after sundry devises and bequests, ad-
ded, " all the remainder of my estate 1 leave to my wife, to be
divided among my children as she thinks proper," and she was
appointed executrix of the will, it ivas held i\v,\t no beneficial in-
terest passed to her in the remamder thus disposed of, but she
only took it in trust for the benefit of her children and to be di-
vided among them. Green v. Collins, G Ired., 139.
42. Where a testator, who had put a woman slave, named P,
LEGACY— I. 853
into the possession •<if his daughter, during which time she had
two children, and then took her back when she had another
child, bequeathed as follows: "I give to my daughter all the
property I have heretofore possessed her with, except negro wo-
man P, which 1 lend to her .during her life, and after her death,
the negro woman P and all her increase to be equally divided
among my daughter's children," and the executor assented to
the legacy, it teas held that, after the daughter's death, the chil-
dren could not recover any of these negroes by petition ; Jirst,
because, as to the negro woman P, the legal estate had vested in
them, and they might recover in an action at law; secondly, be-
cause, as to the issue of P born before the testator's death, they
did not pass under the Mall to the children of the testator's
daughter. Hurdle v. Beddick, 7 Ired., 87.
43. " Increase" in the bequest of a female slave means only
the increase born after the testator's death, unless there be
an apparent intent to include issue born after the making of the
will, or even before, by words of reference to a period from
"which the birth of the issue, that is to pass, shall be counted.
Ibid. (Issue, born before the testator's death, will now pass, un-
less a contrary intent appear by the will. See Rev. Code, ch.
119, sec. 27.)
44. A testator gave to his wife by will, during her life or wid-
owhood, all his estate except what he should otherwise dispose
of. He then gave to his children certain property to be theirs at
Ats decease, and added the following clause: "Also, at the de-
cease of my wife, I give to my so)i, G., my man Stephen, and to
my so)i, L., my man Charles. Also, I give to my son, L. W.jlall
my lands, &c., (in which he had previously given his wife a ife
estate.) Also, unto my son L. W., 1 give my two boys Dick and
David with their mother." It was held that these negroes did not
pass immediately to L. W., but only in remainder after the death
or marriage of the widow. Sherrill v. Echard, 7 Ired., 161.
45. A testator bequeathed as follows : " I give unto my daughter
E. C. during her natural life, at theend of which to the only heirs
other body, one negro girl, Iliah, this to the aforementioned to
them and their heirs forever," it was held that as this disposition,
if applied to land, would have created an estate tail, it gave the
absolute property in the slave to C. C, there being nothing in
the other parts of the will to show that the words "heirs of the
body" meant children. Coon v. Rice., 7 Ired., 217.
4(3. When slaves, by a will made by a testacor in South Caro-
lina, were directed to be emancipated, and then the testator said,
"all the balance of my estate to belong to C. J.," it was held that
C. J. could not claim these slaves at law under the residu-
ary clause, even if the bequest for emancipation were void by
the laws of South Carolina, because they did not pass by the
words of the .residuary clause, but only fell into the residue by
854 LEGACY— I.
the operation of law, and C. J.'s title was only an equitable one..
Jones V. Ahernotlty, 11 IrecL, 280.
47. A testatrix bequeathed as follows : " My girl, Maria, after
my death, I do not leave her as a bond slave to any person ; I
wish her to live here among my children, or otherwise if she sees
proper. I leave J. S. to act as trustee for said girl." Also, " I
will and bequeath twenty-five dollars to Maria;" il loas held that
J. S., took the legal title to. Maria, under the will. Simpson v.
Kimi, 11 Ired., 377.
48. Where a testator gave all his " property" to his wife, and
directed that after her death " it siiould be sold," &c. ; it iras held
that choses in action did not pass. Pippin v. Ulb'son, 12 Ired.,
61.
49. The term "-property," in it legal sense does not include
choses in action; and in reference to personalty is confined to
"goods," which embrace things inanimate, as furniture, &c.,
and "chattels," which embrace living things, as horses, &c.
Ibid.
50. A testator bequeathed as follows : " I loan to my wife
one negro man. Primus," &c., " also she may take choice of any
one of the negro girls belonging to my estate, which I may not
give away," &c., " and at the death of my wife, the negroes I
have loaned to my wife, and their increase, I want to be equally-
divided between my four grand-children," &c. ; it teas held, that
the wife took only a life estate in the girl selected by her from
those not given away. Hyman v. WiUiams, 12 Ired., J(2.
51. A residuary clause operates as a limitation of the interest
of the tenant for life, and passes it over as effectually as if there
had been an express limitation over of the specific thing. —
Ibid.
52. A present bequest of a slave or money is not to be post-
poned until the expiiation of a life estate, although counected
by the word, " also" Avith a devise of land thus postponed, when
the effect of such a construction would be an intestacy as to
such slave or money, during such life estate. Hobertson v. Bo-
l)eris, 1 Jones, 74.
53. In giving a construction to a will, the presumption is that
the testator did not mean to die intestate as to any part of his-
estate, and this presumplion may be strengthened by declara-
tions in the will to that effect. Foust v. IreJahd, 1 Jones,
184.
54. Where a testator bequeathed personal property to his wife,
so long as she should remain his widow, and in case she married
should quit tlie plantation and give up the property, but made
no provision for the alternative of not marrying, and the widow-
did not marry, it was held that the meaning might be that the
\vidow should take an absolute estate in the property in the
frvent of her not marrying, and that this construction was forti-
LEGACY— I. 855
fied by the context of the will, that the testator intended to dis-
pose of the whole of his estate. Ibid.
55. The word " heirs," when used in a will in relation to per-
sonal property, generally is held to mean those who take under
the statute of distributions, and as such, the widow is generally
included; yet, where the context shows plainly that children
only are meant, the widow will be excluded. Henderson v. Hen-
derson, 1 Jones, 221.
56. Where it is manifest from other clauses in the will, that
the testator meant to separate two slaves from the mass of his
estate, and to dispose of them differently from that which had
been given to his wife for life, and it appearing also that his wife
Avas au object of his special bounty, the following words were
construed to pass to her an absolute estate in the slave in ques-
tion, viz: "I further bequeath to my wife, C. N., two servant
boys, Richard and Pinkney, to have and to hold, and to expose
of at her own discretion while she lives, and at her death so as
not to be disposed of out of the family;" and it was held further,
that the latter words, "not to be disposed of out of the family,"
were inconsistent with the absolute estate given by the previous,
words, and were, therefore, inoperative. Newland v. Neidand,
1 Jones, 463.
57. Where a testator had put certain slaves into the possession
of his son-in-law and daughter A., as he had done towards sev-
eral of his other children, and showed by several other provis-
ions of his will, a general intention to confirm such possessions
as gifts, and added a qualification to the gift to A. and her hus-
band, to subject their legacy to the payment of a debt to him
due by the son-in-law, if the debt were not paid within a certain
time, and the debt was paid within the time; it was held that
the gift of the slaves was established and confirme'! in the
daughter A., and they therefore became the property other hus-
band. Sharpe v. Campbell, 1 Jones, 520.
58. Where the testator declared his purpose to provide bounti-
fully for his wife, which would be defeated, and a great inequal-
ity would be produced among his children and grand children,
by adopting the rule of a division ^:)er capita, it teas held that the
court should, in the absence of express words, or a necessary im-
plication to the contrary, apply the rule of a division per stirpes.
Bivens v. Phijh\ 2 Jones, 43(>.
59. The state of a testator's family, as well as that of his prop-
erty, may be shown and considered in puttiiig a construction
upon his will. Ibid.
60. Where a father, on the marriage of his daughter, put into
the possession of her and her Iiusband certain slaves, for their
advancement in life, and then made a will, which did not notice
the slaves expressly in any legacy to such daughter, but
there was an evident intention of the testator to provide equally
856 LEGACY— I.
for all his children, eeven in number, and ^reat inequality
would be produced among his children by defeating the gifts to
the daughter in question, and two other children similarly situa-
ted, it was held that, as the making of the will prevented the
parol gifts of the slaves from operating as advancements, a clause
in it, givmg all his negroes "not heretofore disposed ot " to six
of his children, among whom was not the daughter in question,
should be construed to confirm to her and her husband the slaves
"which her father, the testator, had put in their possession. Laic-
rc7iee v. Blitchell, 3 Jones, 190.
61. A testator, after disposing of a female slave absolutely to
one, may give her increase to another. Carroll v. Hancock, '6
Jones, 471.
62. Where a life estate in personalty is given to one, and then
over to a class, as to the children oi a particular person, all the
children who may be born during the continuance of the life es-
tate will take, and, if one of them die during the continuance of
the life estate, his or her interest will vest in his or her personal
representative. When there is no life estate, an immediate be-
quest to a class will go only to those who answer the description
at the death of the testator. Ihld.
63. A provision in a will, that a certain female slave "will be
set free, if she behaves herself as a good character should do, to
be under the care of my daughter J and her daughters," con-
veys no interest, either legal or equitable, to the daughters of J.
Malloy V. BIcNair, 4 Jones, 297.
64. The grammatical construction of a clause in a bequest will
be disregarded, if it seem to be opposed to the testator's inten-
tion. Hence, where one bequeathed a female slave to her son A
for life, with remainder to his son B, and added "and if the said
woman hath increase, to be equally divided among all Im chil-
dren," and it appearing that when the will M^as wiitten A had
several children besides B, but at that time B had no children,
though he had some afterwards, it was held that the pronoun
"his" referred to the children of A, and not to those of B. Hcb-
erts V. Watson, 4 Jones, 319.
65. A bequest of a fund of personalty to A and B and "their
lawfully begotten heirs," there being nothing in the will to con-
trol the technical meaning of the words, gives the fund to them
absolutely, to the exclusion of a child of B, by force of the rule in
Shelly 's case. Worrell v. Vinson, 5 Jones, 91.
Q^. Where a bequest is made to a trustee in trust for A and B
and "their lawfully begotten heirs," it is subject to the same
construction as if ' the bequest had been of the legal estate, be-
cause the trust is an executed and not an executory one. Ihid.
67. Where a testator, a ter giving his estate to his wife for
life, and then over to a nephew and niece, added, "in the event
of my wife's death, having and leaving an heir, provided it at-
LEGACY— I-II. 857
tains maturity, the above will is revoked, and my property is to
be divided by law, between my wife and heir or heirs," it was
held that a child of his wife by a second husband could not take
under the bequest. BJcGlnnis v. Harris. 7 Jones, 213.
G8. Where a father gave slaves to his daughter N, by his will,
adding "which I intend for the said N. or her issue," and she
had illegitimate issue at the date of the will, but no legitimate
issue, and died after her father without having had any legiti-
mate issue, it li-as lield, that the bastard children could not take
under the term "issue," there being nothing in the will to show
that illegitimate issue was meant, but the mother took an abso-
lute estate in the slaves, which became the property of her hus-
band, ;/?i?-e mariti. Doc/gett v. Mosthj, 7 Jones, 587.
69. A legacy, given immediately to a class, vests absolutely in
the persons composing that class at the death of the testator;
and a legacy given to a class, subject to a life estate, vests in the
persons composing that class at th e death of the testator, but
not absolutely, for it is subject to open so as to make room for
all persons composing the class, not only at the death of the tes-
tator, but also at the termination of the life estate. Mason v.
W/dfe, 8 Jones, 421.
70. Where one of the class was living at the death of the tes
tator, but died before the expiration of the life estate, his interest
in the legacy is not divested by his death, but devolves upon his
personal representative. Ibid.
71. Where a person, by his will, gave "all his slaves," equal-
ly to be divided amojig his children, and afterwards by a deed
gave two of them, by name, to one of his children, it was held,
that it was not a case of ademption, nor for an election, but that
the donee of the two slaves comes in for an equal share of the
other slaves. 3IiUsaps v. McLean, 1 Winst., 80.
See (Legacy — Whether vested, contingent or executory.)
n. WHETHER VESTED, CONTINGENT OR EXECUTORY.
1. Where a testator gave to his wife a female slave, and to
one of his daughters a child, then born, of the said slave, and then
gave to another daughter the first child which said slave should
have, and further directed that in event the said slave should have
three children more, so that his two daughters should have two
apiece, all the other children she might have should belong to
his two sons, ]ield that as soon as the childi-en were born they
vested in the daughters, and that the death of one of them would
not entitle the daughters' to another child in the place of the one
dying, tor the children born subsequently to the first three be-
came vested in the sons, and could not be divested by the death
of one of the three children. Settle v. Wordlaiv, 1 Car. L. R.,
371, (40.)
858 LEGACY— II.
2. A testator gave to his wife " all the property he received with
her;" and the rest of his estate to her until his son should come
to lawful age, when the same should belong to hira; and, in the
mean time, directed that his son be educated and maiidained at
a reasonable expense out of his estate, in proportion to the value
of all the pi-operty and its general profits and income " The
widow died, leaving her son surviving her, and he died before
he attained twenty-one years of age : Held that the legacy to the
son vested in him on the death of the testator, and did not lapse
by his death before twenty-one. Johifiun v. Baker^ 3 Murph.,
318.
3. The word "when," standing by itself and applied to legfi-
cies, is a word of coiitingency, but an exception is ma('e to the
rule, where the testator has disposed of the intermediate iiiter-
est, either to a stranger or the legatee. Ibid.
4. A testator gave as follows: " I lend to my wife the plaritation
whereon I now live, and after her decease 1 give the said land to
my child that my wife is now pregnant with, if a boy, and if it
shoidd be a girl^ I give the land to my son, H., upon his paying
to the said child one iiundred pounds:" held that the legacy of
one hundred pounds to the child, it being a girl, was not paya-
ble until the death of the testator's widow. Justices of Wayne
V. Cranford., 1 Hawks, 241.
5. A bequest in the following terms: " It is my will that my
negroes shall be kept together until my children arrive to full
age or marry, then to be di^^ded between my beloved wife and
children, share and share alike, equally; and it is my desire that
whenever any af my children arrives at full age or marries, that
his or her share of my estate be delivered to him or her imme-
diately," was held to give a present vested interest to each child
in his or her share of the negroes. Clancy v. Dickey., 2 Rawks,
497.
6. A testator gave by will liis property to his two children,,
and if either of them should die, witliout leaving issue, the whole
of his estate, both real and personal, to go to the survivor. B,.
one (^f the children, npon a bill for an account against the exeo-
ntor, obtained a decree for a sum of money, and, in part perform-
ance, accepted certain slaves which were not of the property of
the testator. On the death of B, without issue, the survivor was
held not to be entitled to recover these slaves from a stranger, to
whom thev had been bona fide sold by B. iSo/.t'ieriand v. Webh,
4 Dev., 245.
7. Where a testator gave specific legacies to her sons W, D and
S, and after directing the residue to be divided among them, pro-
ceecle : "but in case either of my sons D or S die, leaving no law-
ful issue then living, then my son W and the survdving one to
have his part of all that is willed to him, and in case they should
both die, leaving no lawful issue then living, then my sou W to
LEGACY— II. 859
have the -whole of what I have willed to each of them," and S
died, leaving issue, and then D died without issue; it was held,
1st, that the specitic legacy given D, as well as his share of the
residue, was subject to the limitation over; 2d, that W alone
succeeded, as there was no limitation in favor of the issue of S.
Ormond v. Gibbs, 4 Dev., 504.
8. In a bequest of personal pr^ perty to B. R., "and if he die
leaving no heir lawfully begotten of his body" then over, the
limitation is not too remote, but is good as an executory devise.
Milkr V. Wdliams, 2 Dev. and Bat.," 500.
9. Where a testator, after a bequest of slaves to each of his
three grand-sons "and their heirs forever," and leaving them his
executors and residuary legatees, bequeathed to his grand-
daughter as follows: " I give to ray grand-daughter, J. T. A , ten
negroes, by name Jane, &c., to have and enjoy the said negroes
during her natural life, and at her death to be equally divided
amongst the heirs of her body, or in case she should die without
a surviving child or children, that the said negroes, with their
increase, sliall return to my three grand-sons as above named, or
to their heirs; it ivom held ihat the grand-daughter took only a
life estate in the slaves, with a contingent remainder to such of
her children as should be living at her death. Allen v. Pass, 4
Dev. and Bat., 77.
10. In a nequest of slaves to a married woman for life, and
then to all tlie children which she may have at the time of her
death; and in case "any of them should die before marriage or
arrival at full age," then the share of such to the survivors of
them; "and if all of them die before marriage or arrival to full
age," then over to other persons; the word "or" will be con-
strued " and," and the limitation over will not be too remote, but
will take effect upon the death of the mother, and of all her chil-
dren, mider age and unmarried. MonUjomcry v. JVynns, 4 Dev.
and Bat., 527.
11. The interest in an executory bequest is transmissible to
the executor of one dying before the happening of tlie contin-
gency, upon which it depends. Lewis v. Smith, 1 Ired., 145.
12. A bequest by a testator, "in the event of his having no
heirs," to his niece, is good at common law, and vests a title in
the niece, if the testator die without children. Tillimm v. Sin-
clair, 1 Ired., 183.
13. A testator bequeathed certain negroes to his three children,
J., S. and N., and then proceeded as follows: " In case either of
my said children should die without heir lawfully begotten, it
is my wish that the property sliould be equally divided among
the children tlten living, whether J., S. or X. J. died first, and
then N. died without issue, leaving S. surviving : Held, that
under this limitation S., the surviving child, took the property
belonging to N. Fortescue v. Satterthwaite, 1 Ired., 5G6.
860 LEGACY— II.
14. A testator bequeathed as follows: "I leave the whole of
my other estate, as well negroes as goods and chattels, to be
equally divided between mylour children, A., B., C. and D., and
for my executors to have it appraised and pay off each child's
part as they shall come to age, the boys to have their part at the
age of twenty-one years, and the girls to have their part at the
age of eighteen years, and if either of my children die without
heir lawfully begotten, then his or her part to be equally divided
between my surviving children and their heirs forever." A.
died first, leaving children, and then B died leaving no children.
It WIS held that the limitation over in the will was not too remote;
that on B.'s death without issue, his share became vested in C.
and D., who survived him; and that as A. did not survive him,
no part of such share vested in the personal representative or
the children ot A. Threadgill v. Ingram, 1 Ired., 577.
15. A testator bequeathed as follows: " I give to my son, W.,
certain negroes nanicvl, &c., to him, his heirs and assigns for-
ever; but in case he should not arrive at the age of twenty-one
years or marry, my desire is that my daughter S. have the afore-
said negroes." S. married and died in the Kfetime of W., who
afterwards died, unmarried and under age. It icas held that the
contingent interest, thus bequeathed to S. in these negroes, was
transmissible to her representatives, and on the death of W.,
under age and unmarried, became a vested, absolute* interest in
her administrator, and, that this construction was not affected
by the f^ict that in another clause the testator gave other negroes
to S., Avitha like contingent limitation to W., in the event of S.'a
dying unmarried and under age. Jacocks v. Akdlen, 2 Ired., 162.
16. A testator bequeathed as follows: "I lend to my daughter,
N. E. M., the following property, to wit, negroes Lewis, &c., and
one bed and farin"ture, &c. If my daughter, N. E M., should
depart this life without issue, then' it is my will that her hus-
band, W. C. I\I., should have one-half of the property I have lent
to her; but the property is to be held in trust by my executors
until the death of my daughter, N. E. M., and then her half of
the property is to be equally divided between her brother J. and
her two sisters M. and K." W. C. M. died, after the testator,
leaving his wife N. E. M. surviving him, and then she died with-
out issue. It ivas held that W. C. M. took a contingent interest
in remainder in one-halt of the property, which, upon his death,
was transmitted to his administrator, and that upon the death
of his Avidow, N. E. M., without issue, his administrator had a
right to recover it. 3Toore v. Barrow, 2 Ired., 436.
17. A testator, in 1836, bequeathed as follows; "The balance
of my estate to be equally divided between my wife and children,"
and in another clause, " my wish is, should either of my children
die without leaving an heir begotten by their body or bodies,
that the survivor or survivors have the whole;" and in another
LEGACY— II. 861
clanse " should rny children all die withont leaving an heir,
begotten by their bodies, my wish is that my brother T. should
heir the whole of my estate as allotted to my children." The
testator died, leaving three children, M., 0. and E., of whom M.
died, leaving a child, and afterwards 0. died without issue, lea-
ving E. surviving. It teas held that all the estate of O. so dying,
became A'ested in E., her onlj'- surviving sister, and that the child
ofM. was not entitled to any share of it. Skinner v. Lamh, 3
Ired., 155.
18. Where a legacy is given to " children," as a class, payable
at a future day, any child who can entitle itself under the des-
cription at the time when the fund is to be divided, may claim a
share thereof Wallis v. CoireJ], 3 Ii-ed., 323.
19. Before the act of 1827, a bequest of personal property to
*' A and his heirs," and " if he should die and leave no lawful is-
sue," then over to B was a good executory limitation to B, to
take effect if A died without leaving any issue living at the
time of his death. And if B died betore A, this executory in-
terest was so far vested that, on the happening of tlie contingen.-
cy, the personal representative of B would take it. liobaids v.
Jones ^ 4 Ired., 53.
20. Where a testator, before the act of 1827, bequeathed as
follows: "I give to my son J. W., all my negroes, to him and
his heirs lawfully begotten of his body; but if he should die
without lawful heirs, then my wish is, to S. W^, to him and his
heirs for ever," it was held, tliat the limitation over was too re-
mote, and that J. W. took the absolute estate in the slaves.
Lister v. Shnner, 4 Ired., 57.
21. Wliere there is a bequest in a will to a class of persons, as
to children, courts are always anxious to effectuate the intention
of the testator, by including as many persons answering the
description as possible. 3Icai\s v. 3Jtares, 4 Ired., 192.
22. When legacies are given to children, payable or to be di-
vided at some period subsequent to the testator's death, then
those persons, wdiether born before or after the making of the
will, or before or after the death of the testator, who come into
being before the period of division, &c , and answer the descrip-
tion at that time are, entitled. Jl.'id.
23. In construing a father's will, although the division majr
not be postponed, a bequest to his own children will be held
to include all of them in being at his death, unless it be evident
upon the will, that the testator n eant the provision only for those
living at the date of the will. Ibid.
24. A testator bequcuitlied certain slaves to three of his daugh-
ters and to a child, then in venire -sa mere, to be divided at a deB-
ignatcd period, and then directed, "And if either of my daugh-
ters, or the child my wife now appears pregnant with as afore-
said, should die after the division, without lawful issue,, it is my
862 LEGACY— IT.
Avill that such part slioiild be equally divided between my wife
and my snrviying children." The child born afterwards died
after the division and without issue, leaving his mother, and two
of the daughters surviving him. It tvas //eWthat the limitation
over was good as to the mother and the two surviving daugh-
ters, but that it did not extend to the children of one of the
daughters who had died before the son, Long v. iY rom, 4
Irecl, 255.
25. A testator, by his will made in 1808. bequeathed certain
personalty to four brothers and sisters, to them, their heirs and
assigns, and then added, '' if either of them should die without
any heir in tuorriage, then their legacy to their own brothers and
sisters," it was held tliat the remainder over was too remote, and
was therefore void. Cox v. Marks, 5 Ired., oGl.
26. A, having four children, bequeathed, since the act of 1827,
certain i-livesto his daughter N., then a married woman, and if
she died without issue, one-half to her husband, and the other
half to her brothers and sisters. After the assent to the legacy,
N. died without issue, leaving a brother and two sisters, one of
whom was then a married woman, but her husband died soon
afterwards. It was held that the husband had a vested legal in-
terest in one-tliird of the moiety of the said slaves, which, on his
death, passed to his administrator, Skinner v. Barrow, 5 Ired.,
414.
27. A bequest or slaves to A, and "after her death to be equal-
ly divided ])etween the heirs of A.'s body," is a good limitation
to the (children of A. Miles V. Allen. 6 Ired., 88.
28. A testator devised and bequeathed as follows: " I give to
my son, B. D. H., all my estate after settling my debts, except
$300. If B. D. H. does not live till of age, then I dispose of ray
estate as follows : I give to my sisters," &c, B. D, li. died under
age, and it na< held that he was entitled to the profits of the es-
tate, which consisted of land, negroes and other chattels, (except
the $300) during his life. Albiitton v. ^t,tt!m. !> Ired., 389.
29. A bequest was as follows: " I give to E. and S. all the ne-
groes 1 ^ent to my daughter P,, to them and their heirs forever;
and if they should die without an heir, for said negroes to be
equidly divided between H. and all my children." E. married
the defendant, and died without leaving a child. S, married the
|)laintiff, is still living, and has several children, and it tvas held
that E. and S. took vested estates; that cross remainders could
not be implied, and that E.'s estate ccmld only be defeated, upon
the contingency of S.'s dying leaving no child. GoMeld v. Jii.b-
erts, 13 Ired., 277.
30. A testator directed that his whole estate was " to remain
together as a joint stock of my wife and children, and my farrn
continue under the management of my executor, for their sup-
port and education, and that each one, if a son, receive his dis-
LEGACY— II. 863
tributive share, when he arrives at the age of twenty one years,"
<!tc. D., one of tlie sons, died at the age of six years, and the
court having held that the widow, on her marrying again, had
■a right to withdraw her share from tlie joint stock, the adminis-
trator of D. claims D.'s share as demandable at his death, or his
aliquot proportion of the income thereafter accruing; it icaslield
that he was entitled to neither, the share not being v.[emandable
until the time when D. would have attained twenty-one, an I the
income belonging to the other legatees, exclusive of the widow.
Pttway V. Baker, Busb., 2(38.
31. A bequest of slaves to one for life, and at his deatli '■ to
his heirs lawfully begotten of his body, and for want of such
heirs," to certain persons designated, was held to be a good lim-
itation to such persons, under the act of 1827. Sanderlin\. Ue-
ford, 2 Jones, 74 (See Rev. Code, cli. 43, sec. 3.)
32. A bequest of a contingent interest to children, without
any reference to their death during the pendency of the contin-
gency, vest8 such an interest as survives them on their dying
before the happening of the contingent event, and goes to their
personal j-epresentatives. Ibid.
33. Where a testator gave by will certain slaves, also, half a
dozen table .spoons and one dozen tea spoons, to his three daughters,
with a provision that if either of them should die after the di-
vision, without lawful issue, her part should be equally divided
between his wife and the surviving children ; it tvas held, that
the limitation over ot the slaves, as well as of the spoons, was
good, notwithstanding there was a reservation to his wife of a
life estate in one of the slaves named. Long v. JVrigld, 2 Jones,
140.
34. AVhere a testator bequeathed slaves to his five children.
and added, "in case any of my aforesaid children shall die with-
out a lawful heir, begotten of his or her body, then his or her
share to be equally divided among the survivors;" and three of
the children having died, and their estates been disposed of, it
vas heh!, upon the death of the fourth without issue, that his
share had become absolutely vested in him and went to his per-
sonal representative, and did not survive to his sister, who was
the last survivor of the children. Wcbh v. IVeeks, 3 Jones, 279.
35. A testator bequeatlied two slaves to his daughter, and re-
quested that she should reside with her mother wliile she re-
mained single, and then added "if she should die single, then
the property willed to her" to go over to others. The daughter
married, but survived her husband and then died, and it was
held that she did not "die single" within the meaning of the tes-
tator, and that, therefore, the limitation over did not take effect,
Lmhhy V. LaahU'ii, 3 Jones, 414. •
30. Where a testatov directed that, as any one of his children
should come of age or marry, certain slaves should be divided
8^ LEGACY— II.
intO' lots and tlie child so coming of age or marrying should hav"6>
a lot assigned to him or her, the remainder of the slaves to con--
tinue in common until another child came of age or married,
when another lot v/as to be assigned, and so on; and then the
testator added these words, "and the negroes thus drawn shall
become absohitely the property of the heir drawing the same,
and shall exclude the said heir from any iurther claim in this
stock of negroes, unless some one of the heirs should die without
legal issue, in which case the surviving ones shall inherit equal-
ly ;" it 'Wa.s held that as each lot was assigned, it vested absolute-
ly in the child receiving it, and that the provision for a division
of a share of a child dying without issue applied only to a child
so drying before any lot had been assigned to him or her. Mc-
Eac'hin v. McRae, 5 Jones, 19.
37. After a gift of property to the testator's wife, it was added :
" But should my wife die without heirs of her body, then at her
decease, the whole of the property to go the use and benefit of
my daughter," and it loashdd the will being made before the act of
1827, that the limitation over was restricted to the wife's death,
and therefore not too remote. But there being another provis-
ion in the will that should the daugliter " die previous to the
death of my said wife, and without marrying or having heirs of
her body, that then the land and property which I have be-
queathed to her shallrevert beak" to the wife; it was held, from
those and some other expressions favoring the same view, that
the limitation to the daughter, at the wife's death, was not to
take effect unless the wife's death was precedent to that of the
daughter, and that, as the wife survived the daughter, the prop-
erty" given her became absolute at the death of the daug'hter.
Baker v. Pender, 5 clones, 350.
38. A transposition of the sentences of a will is allowed by the
rules of construction, when the manifest intention of the testa-
tor requires it. Ibid.
39. A limitation of a female slave and her issue over to a per-
son, upon the contingency that the first taker ''shall die under
age or witliout leaving issue," will fail if the first taker arrive at
the age of twenty-one years, although he may afterwards die-
without issue. Black v.' McAuley, 5 Jones, 375.
40. A bequest of slaves to a daughter, with a provision that
" if she should have issue living at her death" then to such issue,
but "if she should die without leaving lawful issue" then over,
VMS held, upon her dying without leaving children, to be a good
limitation in remainder." Newnan v. Miller, 7 Jones, 51(5.
41. A testator, in 18151, bequeathed a negro woman to his
daughter " and her heirs of her own body forever, and, if none, to
return after her death" to the rest of the testator's children
equally, it was held that the limitation over to the testator's oth-
er children was not too remote. Blake v. Fage, 1 Winst., 255..
LEGACY— 11-111. 665
42. Tliese words in a will, " I give to my daughter S. four
?;laves, named, &c., to her and her heirs; provided, nevertheless,
if the said S. die childless, then it is my desire that my son A.
move back to this comity, and to have them, but not to take
them to any other part of the country," vests the slaves in A.
absolutely, the request to move back being precatory only, not
mandatory. Harris v. Hearne, 2 Winst , 92.
See (Husband and Wife — Husband's interest in his wife's es-
tate, &c., 26.) (Legacy — Construction — What passes and who
takes, 2 l-2a-24-29-35-36-42-44--6 1-69-70.)
HI. OF THE ASSENT OF THE EXECn^OR AND ITS EFFECT.
1. Where there is a legacy for life or years, and no remainder
limited over, the assent of the executor enures oidy to the benefit
of the particular tenant; and the executor is entitled to the
possession of the chattel again after the expiration of the par-
ticular interest. Anoiiyinous, 2 Hay., 161, (346,) S. P. Jones v.
Masters, 3 Murph., 110, Black v. Bay, 1 Dev. and Bat., 334.
JIcKerdey v. Scolf, 4 Jones, 197.
2. The assent of executors to the first taker is an assent to
all subsequent takers of a legacy, limited over by way of lemain-
der or executory devise. Dunwoodie v. Carrington, 2 Car. L. I*.
469, (355.)
3. Biit this rule does not prevail, when, after the death of the
first taker, the executor has a trust to perform arising out of the
property, which therefore must be subject to his control, and
lie must have the legal title. Ibid. S. P. Allen v. Watson, 1
Murph., 189.
4. An assent to a legacy may be presumed from the executor's
holding it for five years, claiming it as next uf kin of the leg-
atee, a .d selling it as his own. 3Ierrit v. Windley, 3 Dev., 399.
5. An assent to the legacy of a slave by the executor of a will,
made by a fhne covert uiuler a power, does not vest the legal
title in the legatee, although the ti'ustee in the marriage articles
be also the executor, unless he assent by deed or by actual
delivery. Ihid.
6. If a legatee take possession of property, claiming it under
the will, and retain it for many years, the assent of the executor
to the legacy mav be presumed. IVhite v. White, 4 Dev. 257, S.
1*. and S. C', 1 Dev. and Bat., 260.
7. If a testator by his will forgive a debt, the assent of the
executor is necessary, before the debt is extinguished. Ches/iire
v. Cheshire, 2 Dev. and Bat., 254.
<^. An assent to a legacy hy an executor may be presumed
i'rom his acts or declarations, as well as be expressly proved;
Ijut where upon a bequest of a pocket book and its contents, the
executor estimated the amount, and stated that that was all the
13*
866 LEGACY— III.
legatee took under the will, it ivas held to be not in law an
assent, but only a fact from which it might be presumed. Ibid.
9. Where a testator bequeathed a negro woman to his wife for
life, and if the woman should have another child, then after his
wife's decease that his daughter should have the child, it was held
that the assent of the executors to the legacy of the negro
woman, to the wife for life, was an assent to the bequest of the
clnld to the daughter, although sucli assent was given before
the child was born. Conner v. Satchwell, 4 Dev. and Bat., 72.
10. An assent by an executor to a bequest for life, where upon
the termination of the life estate it is not necessary for the pur-
poses of the will that the executor should retake possession of
the tJiing bequeathed, operates as an assent also to the ulterior
bequests. And where the tenant for life, who is himself the
executor, retains possession of the thing bequeathed for thirty
years, the jury not only may, but are buund to infer an assent
ito the bequest. Lewis v. Smith, 4 Dev. and Bat., 326.
11. Acquiescence by an executor, in the possession or sale by
the legatee for life of the thing bequeathes, furnishes a ground
for inferring an assent to the ulterior bequest. But where the
person named executor in the will refuses or neglects to accept
t'^e office, no acquiescence on his part or act of his, not amount-
ino- to an act of administration, will justify the inference; be-
cause, in order thereto, there must be an executor to assent.
White V. fVhite, 4 Dev. and Bat., 401.
12. Where a testator bequeathed certain slaves to one for life,
and then over to another person, and the legatee for life, without
any renunciation of the executors named in the will, obtained
letters of administration with the will annexed upon the estate,
and took possession of the slaves, and retained them for more
than thirty years, until his death, it was held that the jury migl.t
infer an assent of the executors, or make any other reasonable
presinnption of fact, to uphold the right of the legatee in re-
mainder. Leiois V. Smith, 1 Ired., 145.
13. Where a person, wlio claimed a specific legacy, was per-
mitted by the executor to take it into possession, upon an agree-
ment that if it should be decided that he was not entitled to it,
it should be returned to the executor, it ivas held that this Avas a
sufficient assent to the legacy, it being afterwards determined
that the claimant was entitled under th;e will to the legacy
claimed. Lillard v. Beynolds, 3 Ired., 366.
14. Where slaves are bequeathed by a testator to his widoAV
for life or widowhood, and after her death or marriage to be di-
vided among her and her children, the assent of the executor to
the legacy vests a right in those in remainder, so that an'executor
de bonis non cannot recover them. Etheridge v. Bell, 5 Ired., 87.
15. When, in a suit by legatees against the administrator with
the will annexed, it was decreed that the administrator should
LEGACY— III. 867
deliver to three of the four legatees, entitled to legacies of slaves,
their respective slaves, which was done, and as to the other share
(the legatee being in parts unknown,) it was decreed that it
•' should be allotted to the administrator, &c., for the use " of
such legatee, upon the trust declared in the Avill, &c., and the
administrator, under this decree, kept possession of tlie share of
the slaves thus allotted, and hired them out and deposited the
hires in court, it luas held that this amounted to an assent to such
legacy. Bufalow v. Baarjli^ 12 Ired., 201.
16. An executor in Virginia has no right to assent to a legacy
of property situate in this state,' without making probate of the
will, and taking letters testamentai-y from our courts. Stamps
V. Moore, 2 Jones, 80.
17. When an adverse possession of a chattel specifically be-
queathed commences after the death of the testator, the executor
may assent to the legacy so as to enable the legatee to sue for
it in his own name; but it is a question, whether this can be
done when the adverse possession commenced before the testa-
tor's death. Johnson v. Arnold, 2 Jones, 113.
18. An executor may lawfully assent to a specific legacy be-
fore the debts of the estate are paid. Edneyx. Bryson, 2 Jones,
365.
19. The assent of an executor to a specific legacy may, under
circumstances, be legitimately implied. Ibid.
20. If the executor permit a slave, bequeathed by the testator
to his daughter, to remain with her at the late residence of the
deceased, for ten years, without assuming himself any control
over tlie slave, it is certainly some evidence of an assent.
Frjp.'t V. Roseman, 4 Jones, 130.
21. A bequest of a slave for the life of the legatee, without
any limitation over, passes only a life estate to such legatee ;
and the assent of the executor extends no further than such life
interest, so that after its termination he may recover the slave.
JIcKinky V. Scott, 4 Jones 197.
22. Wliere slaves were given by will to one for lite, with a
limitation over to another, and the executor assented to the es-
tate of the first taker, his assent to the ulterior estate will be
implied, and the repudiation of the legacy by the first taker
will not do away with the effect of the executor s assent to the
succeeding gift. HotddHssv. Thomas, 6 Jones, 537.
23. A limitation over of a cliattel interest, after the expiration of
a life estate, is not strictly a remainder, but an interest in ftduro,
created by an executory devise of a distinct property, and the
rule, that the assent of the executor to one is au assent to the
other, is not founded on the idea that the two interests consti-
tute one estate, but because, it being the executor's duty to as-
sent to both, when it is made to the first estate it will be con-
8()8 LEGACY— III-IV-V.
sidered as having been made to botl% unless restricted to one
al(5ne. Ibid.
24. There is nothing" in the Kevised C(.»de, ch. 119, sec. 29,
providing for a child born after the will of his father was made,
which makes an exception to the rule of law, that an assent by
an executor, to a tenant for life of a chattel, is an assent to tJii^
ulterior legatee. Windley v. GayJorrl, 7 Jones, 55.
25. The assent of an executor to the tenant for life of a chat-
tel generally leaves notliing that can vest in the administrator
df bonis non of the testator. Ibid.
26. A be(]uest cannot, in law, have the effect of confii-roing a
parol gift of a slave, so as to vest the title in the donee, inde-
pendently of the assent of the executor, Wooten v. Jarman., 7
Jones 238.
See (Executors and Administrators — -Of their liability to lega-
tees and next of kin, 4-5.) (Trover — When it will lie, 4.)
IV. WHEN A LEGACY WILL BE PRESUMED TO HAVE BEEN PAID OR SATISFIED.
1. After the death of all the executors of an estate, and at the
end of forty years, a presumption of satisfaction or abandon-
ment of a legacy becomes cogent, unless it be repelled by the
time of the payment of the legacy, the age of the legatee, the
practice of some particular imposition, or other sufKcient cir-
cumstances. 3Iorrison v. JlIcEJrath, 4 Dev. and Bat., 474.
2 The lapse of time will not help an executor, when he ad^
mits that he paid a legacy to the wrong person, as to an insol-
vent father wlien the children were entitled to it, and will not
raise a presumption of payment to the children, or an abandon-
ment or acquiescence by them, Wallis v. Coivell, 3 Ired., 323.
3. Where an administrator holds a distributive share, without
closing up the estate by a settlement and payment of the bal-
ance struck, the remedy of the next of kin can only be barred
by the common law presumption, arising from the lapse of
twenty years. But where he tiles a settlement, setting out the
admitted balance, and the matter is closed upon that footing by
a receipt in full of such balance, if the next of kin afterwards
seek to impeach the settlement, he must do so within ten years,
or he will be barred by the act of presumptions. Rev, Code, ch.
ti5, sec. 19. Wilkermn v. Dunn, 7 Jones, 125.
4. The common law presumption as to a legacy or distribu-
tive share does not begin to run against one who is an infant,
until he comes of age. Ibid.
V. LEGACY "after DEBTS PAID," WHAT FUKD LIABLE FOR THEM.
1. Bequest, " after my debts are paid, it is my will that my
stock of hogs and cattle, &c., shall go to M. W.," the debts are
LEGACY— V-VI-VIL— LEX LOCI. 869
to be paid out of the undisposed surplus, if there be any, as that
is the primary fund for the payment of debts. Battle v. Yates, 2
Hay., 304, (492.)
VI. FOR THE SEPARATE USE OF A FEME COVERT.
1. A bequest of a slave to a feme covert "for her proper use "
does not vest in her a separate and exclusive right; but the leg-
acy, if assented to by the executor, goes to the husband; for the
court will not force a construction, to give a legacy to the sepa-
rate use of the wife. GilHa,^. v. Welch, 4 Dev., 286.
2. Where a testator bequeathed thus: "to the only proper use
of my daughter Margaret :" and it did not appear in the will, nor
by the proof, that she was a foiie covert, though she was so in
fact, it was hehl that the property was not given to her sole and
separate u.se, so as to deprive her husband of his marital rights.
Baso7i V. Hdt, 2 Jones, 323.
Vn. LAPSED, VOm AND ADEEMED LEGACIES.
• 1. When a legacy is given to four children by name, and one
of them dies in the lifetime of the testator, his legacy is lapsed,
and must be distributed as undisposed of property, among the
)iext of kin of the testator, provided there is no residuary clause
in the will. Stcde v. Shannonhonse, 7 L'ed., 9.
2. A testator bequeathed a negro woman to his daughter, and
afterwards sold her, and kept tlie amount received from the sale,
to be given to the daughter in lieu of the negro sold, but made
no alteration in his will, and it was held that the legacy was
adeemed, and that the daugliter had no right to the price of the
negro. Snowdni v. Banlis, 9 Ired., 373.
See (Legacy — Construction — What passes and who takes, 71.)
I.EX LOCI.
L If, before our act of 1823, a deed had been executed in an-
other state, limiting slaves to one for life remainder over to an-
other, the limitations of the deed would have been supported,
had it been shown that they were good according to the lawB of
that state. Smthw. Tucker, 2 Dev., 541.
2. The law of the country where the contract was made is the
rule by which its validity, its meaning, and its consequences are
to be determined. But where a law of Virginia gives bona fide
purchasers of slaves from a bailee, who has had possession more
870 LEX LOCI.
than five years, a good title against the bailor, unless the bail-
ment be registered, if a purchase, pending a suit by the bailor
against the bailee, would not be valid in A^irginia, so neither would
it be in this state, although the suit v/as pending in Virginia, and
therefore was not notice to the vendee here. Watson v. Orr; 3
Dev., 16L
3. In construing the law of anotli'u- state the decisions of that
state, if known, are to be followed. Ibid.
4. The interpretation of a will made in another state must be
determined according to the laws of that state. Kniqlit v. Wall.
2 Dev. and Bat, 125.
5. The courts of this stated© not know the lawof other states,
and a controversy respecting that law is ordinarily one of fact,
which must be decided on evidence by the jury, under the
instruction of the court. Ihid.
6. The only exception to this rule is when nul tiel record is
pleaded to the judgment of a court of record in another state,
in which case the court here must pass, not only upon the
existence of the supposed record, but upon its legal effect. Ibid.
7. The laws of this state, at the time of the cession of Ten-
nessee, must be taken to be the laws of that state, until it be
shown that they have been altered or repealed. State v. Fatter-
son, 2 Ired., 346.
8. A gift made in South Carolina, wdiich is good by the law of
that state, is good in this state. Adams v. Hayes, 2 Ired., 361.
9. A deed, executed in South Carolina for a slave then being
in this state, with certain limitations over, which by the law of
that state are invalid, but which by our law are good, must be
construed according to the law of that state, and, therefore, the
limitations over are void. Morroio v. Alexander, 2 Ired., 388.
10. A contract for money payable generally, naming no place
of payment, is to be taken to be payable at the place of contract-
ing the debt, and not where the domicil of the creditor may be.
Arrington v. Gee, 5 Ired., 590.
11. Where a contract is made in another state, it is to be gov-
erned by the laws of that state, and not by those of North Car-
olina. Anderson v. Bocdc, 10 Ired., 295.
12. Where A purchased a slave of B, in the state of Virginia,
and took there a bill of sale, which, thongh not valid under our
statute, was good and sufiicient by the laws of that state; and
the slave was, at the time of the said sale, in the possession of C,
as bailee of B, in this state, and he afterwards sold the same. It
was held that, in a suit by one claiming under A against the
vendee of C, the lex loci contradus determined the sufficiency of
the conveyance from B to A, and that it, therefore, passed a good
title. It would have been otherwise, had the defendant been
claiming as a creditor, or under a creditor of B; in which case
the lex rei sitoe would govern. Drewry v. Pliillips, Busb., 81.
13. If, by the laws of a foreign country, a contract is void
LEX LOCI— LIBEL. 871
unless it be written on stamped paper, it is void every ivlicre. This
principle is especially applicaljle to the several states of this con-
federacy, which, though foreign to each other in some respects,
are miited for all great national purposes under one government.
Therefore, a bond executed and payable in the state of Maryland,
which is void under the laws of that state, because the same
was not written on stamped paper, is void here also, and cannot
be recovered in the courts of this state. Satterthivaife v. Doughty,
Busb,, 314.
14. The lex fori, and not the lex loci contractus, applies to the
presumption of the payment of a bond executed in Virginia,
but upon which suit is brought in this State. Halves v. Crcdgie,
4 Jones, 394.
15. A will made in another state, which is there subject to be
construed according to the rules of the common law, will have
the same construction as if it had been made in this state, un-
less it appear by judicial decisions, or by the opinions of men
learned in the laws of that state, that a different construction
would there prevail. Worrells. Vinson, 5 Jones, 91.
16. A limitation over of personal property, situated in this
state, after an indefinite failure of issue, by a will made in other
state by one domiciled in that state, is too remote; as the com-
mon law, in the absence of proof to the contrary, will be pre-
.sumed to be in force in that state. Black v. McAiday, 5 Jones,
375.
17. AVhere a slave was sold with a written warranty ol *itle
in Alabama, and the purchaser held him there adversely for
more than six years, and it was shown that such a possession
gave a title by the laws of that state, it was held, in an action in
this state for fhe breach of the warranty, that the title was made
good by the laws of Alabama, and that, therefore, the plaintiff
could not recover, a,lthough he proved that the slave had run
away in South Carolina, and a court of that state had decided
that the title thus acquired in Alabama was invalid, against a
person wlio had previously had title in the State of South Car-
olina. Alexander v. Torrence, 6 Jones, 260.
18. Where a contract is made in one country, but to be per-
formed in another, the rate of interest will be according to the
law of the latter. Roherts v. McNeely, 7 Jones, 506.
. See (Interest, 4-16-17-18-20.)
LIBEL.
See (Indictment — Form and matters relating tlireto, 127 )
(Indictment — Variance between the allegation and proof, 1.)
872 LIBEL— LICENSE.
(Action on the case— Slander, 5-9-42-63.) (Evidence — In crira»-
inal proceedings and indictments, 67.)
LICENSE.
1. It is not reasonable^ and therefore not legal, to presume a
more extensive license than is essential to the enjoyment of what
is expressly granted. Therefore, a license to enter a man's land,
for the purpose of taking off corn, must be construed a license
to enter by the usual mode of access provided for such purpose,
as through the gate or other appropriate entrance. Gaxdner v.
Rowland, 2 Ired., 247. •
2. He who abuses a fegaHicense is a trespasser a6 w^Y^'o. There-
fore, where a man's hogs get into another's field, and the owner
of the hogs in driving them out lets down the plaintiff's fence,
instead of di'iving them through a gap or gate, he is guilty of a
trespass. Ihid.
3. Where A grants a license to B, to flow the water from B's
land through A's ditch, B has no right to increase the quantity
of water so flowed, either by adding to the number of his ditches,
or clearing new land, or enlarging his ditches, so that the flow ot
water will be greater than it was wdien the license was granted ;
and if B do so, A may recover damages for any injury sustained
thereby. Carter v. Page, 8 Ired., 190.
4. A license to turn one stream u]x>n A.'s land is not an au-
thority to stop that, at the party's pleasure, and turn another in
its stead. Ibid.
5. A license to enter upon land and take fish out of the own-
er's pond cannot be implied by proving a^usage, or custom, in the
country at large, for every person to enter upon his neighbor's
land and take fish. Winders. Blake, 4 Jones, 332.
6. An indefinite number of persons are not capable of taking
by grant, nor are they capable of accepting a license, except in
the case of innkeepers, shopkeepers, and the like, who undertake
to serve the public. Ihid.
See (Mills — Action at common law for damages caused by a
mill, 2.) (Mills — Proceedings under the act of 1809, 13.) (Tres-
pass— Of trespass quare dausum fvegity. 9.)
LIMITATIONS— STATUTE OF— I. 873
LLAflTATIONS-STATUTE OF.
I. When the statute begins to run.
II. When the statute will , or will not,
bar in personal actions.
III. Limitation of actions on oflkial
bonds.
IV. *EfFect of the statute upon the title
to slaves
V. Limitation as to suit against execu-
tors, administrators, heirs and
devisees.
YI. Limitation as to real estate.
♦Slavery is now abolished in North Carolina. See the note to the title Slaves.
I. WHEN THE STATUTE BEGIXS TO RUN.
I
1. The statute will begin to run, where A. detains the chattel
of B., only from the time when B. knows where it is, and that it
is claimed adversely. Berri/ v. PidUam, 1 Ilaj., 16, (21.) S. P.,
Elicicl- V. Bnsh, Ibid, 28, (37.)
2. The statute runs from the date of the last item in an ac-
count, when the account has been running* on from its first com-
mencement, but when it is once deserted or ended between the
parties, theri from that time. McNaugJdon. v. Norris, 1 Hay.,
216, (246.)
3. When the statute begins to run, none of the impediments
mentioned in the act will stop its course. Andreics v. 3IvJ/ord,
1 Hay., 311, (358.) S. P., Anonymous. Ibid, 416, (480.) Cob-
ham V. Need, 2 Hay., 5, (150.) Fearcey. House,^. 0. TermPiep.,
305, (722.)
4. In the case of slaves, the statute begins to run from the
time they got into the defendant's possession, unless he were en-
trusted with them by the plaintiff foran indefinite time, (for then
the statute will not begin to run till a demand,) or unless the
defendant removed himself, so that the plaintiff could not find
him to bring suit, or had the slaves without the knowledge of
the plaintiff.— ^///y/o/-ev. 3IUh, 1 Hay., 359, (412.)
5. The statute will run, though the defendant may be out of
the country. Anonymous, 1 Hay., 459, (528.)
6. Where one drew the pay of a soldier, the hitter's right of
action accrued immediately, and the statute then began to run.
Siveat Y.Arrimjton, 2 Hay., 129, (293.)
7. In case of fraud, the statute will not run but from the time
of its discovery. Ibid. (Overruled hj Hamilton v. Shepherd, 3
Murph., 115.)
8. If the purchaser of a chose in action sue in his own name
and be non-suited, and afterwards sue in the name of the ven-
dor, the former suit will not suspend the operation of the statute
as to the last suit, because there is no privity in law between the
vendor and vendee of a chose in action. Hahey v. Buckley, 2 Hay.,
234, (414.)
874 LIMITATIONS— STATUTE OF— I.
9. If a trespass be begun by entering on lands three years
before the action of trespass, and be continued until the action, the
plaintiff is barred by the statute, because the action is founded
on the first tortious entry. Pitrnon v. Casey, 2 Hay., 293, (478.)
10. The statute will only run from the last article in an account
current. Kinihal v. Person, 2 Hay., 394, (593.)
11. An order of the court of equity, directing a note to be de-
posited with the clerk and master, by which the plaintiff was
delayed in bringing his suit, will not prevent the commencement
or stay the operation of the statute. Vance v. Grainger, Conf
Ftep., 71, (203.)
12. The statute begins to run from the time the plaintiff has
cause of action agaiitst the defendant. Coomer v. Little, Conf
Kep., 92, (223.)
13. The saving in the statute, as to persons " beyond seas,"
<loes not extend to persons resident in other states of the Union.
WhiUock V. Walton, 2 Murph., 23. S. P. Farle v. McDoivell 1
Dev., 16.
14. The statute of 31 Eliz., limiting the time for bringing
qui tarn actions, is in force in this state. Bridges v. Smith, 2
^lurph., 53. (Mow repealed, and suits for penalties provided for,
in Eev. Code, eh. 65, sec. 3.)
15. In an action on the case for fraud in the sale of a land
Avarrant, the action accrues, and the statute begins to run, from
the time the fraud was committed, and not when it was discov-
(.-red. Hamilton v. Shejyperd, 3 ]\lurph., 115.
16. Where A owed B, and made him a payment, taking his
acknowledgment with a promise to refund in case the payment
exceeded the amount due, and upon a reference the arbitrator
found that B was overpaid, it was held, in an action upon the
acknowledgment and promise, that the statute did not begin to
run until the award was made. Falls v. McKnicjhi, 3 Dev., 421.
17. A surety, who pays money for his principal, has a com-
plete right of action against his co-surety Tor his rateable part,
from the time of such payment; and the statute, therefore, begins
to run from that time. Sherrod v. Woodard, 4 Dev., 360.
18. AVhere the ownef of slaves made a parol gift of them to
his son-in-law, who bequeathed them to his children and died,
leaving the donor executor of his will and guardian of his chil-
dren, it was held that the taking possession of the slaves and
hiring them out, first as executor and then as guardian, was not
a possession adverse to the title of tlie donor, and that the statute
of limitations did not begin to run against him, until he had per-
mitted a division of the slaves between his grandchildren, and
delivered them over. Alston v. Hamlin, 2 Dev. and Bat., 115.
19. Where an original writ is returned "not found," and a
term of the court is suffered to elapse without suing an alias, the
suit is discontinued ; and it, at a subsequent term, an alias be
LIMITATIONS— STATUTE OF— I. 875
sued out, its date is the commencement of the action, and tlie
statute begins to run from that time. Fulhrujld v. Tritt, 2 Dev.
and Bat., 491.
20. If an action be wrongfully brought in the name of one
• without his knowledge or consent, and he have to pay the costs
upon its dismission, his right of action for the iort, against the
person who wrongfully sued in his name, accrues, not from the
commencement of the wrongful action, but only from the time
when he is compelled to pay the money on account of it; and.
consequently the statute of limitations will begin to run only
from that time. 3IiIIcr' v. EsJcridge, 1 Ire.d-, 147.
21. In the case of a person dying intestate in another state,
the statute does not begin to run here, until administration is
granted in this state. Leev. Gaiise, 2 Ired., 440.
22. Where A. undertook to go to Georgia, sell a negro of the
plaintiff and collect his hire, and with the proceeds pay off, vpo//
Ids return to this state, a certain judgment, it loas held thata riglit
of action accrued to the plaintiff, as soon as A returned to this
state,' and, instead of applying such proceeds to the satisfaction
of the judgment, appropriated them to his own use; and, of
course, the statute began to run from that time. Baines v. Wil-
lianis, 3 Ired., 481.
23. No excuse (beyond the exceptions in the statute itself,)
such as the deception of the defendant, &c., will, in a court of
law, prevent the statute from running. Ibid.
24. Where a deputy sheriff received money on an execution
in his hands, and had failed to endorse it on the execution or
give credit for it, but afterwards collected the whole amount, with-
out deducting the sum so paid, and afterwards promised to pay the
defendant in the execution, if such mistake had been made, if
was held that the statute only began to run from the time of the
promise, not from the time the money was received, or from the
time of the failure to pay it over. TarJdnton v. Hassell, 5 Ired.,
359.
25. In a suit by a principal against an agent, to recover back
money entrusted to him to be applied to a s|)e('ial purpose, and
which he had failed to so apply, the statute did not begin to run
until a demand was made. Buchanan v. Parker, 5 Ired., 597.
26. If the act of 1715 will not bar by the lapse of three years,
where the defendant is an agent, neither will the act of 1826, be-
cause there must be a cause of action subsisting before the time,
under either statute, can commence running. Ihid. (See Rev.
Code, ch. 65, sees. 3 and 18.)
27. The statute does not begin to run against persons claim-
ing a legacy of slaves in remainder, after a life estate in another,
until tlie death of the tenant for life. Miles v. Allen, 6 Ired., 88.
28. The statute will not begin to run against oae claiming
land in remainder after a life estate, until the death of the tenant
for life. Davenj)ort v. Wynne, 6 Ired,, 128.
876 LliMITATIONS— STATUTE OF— I.
29. Where money has been received by an agent, a demand;,
or a misapplication of the money, is necessary before an action
can be brought, and the statute of limitations only begins to run
from the time of such demand, or from the misapplication.
Waring v. Bichardsony II Ired., 77.
30. Where A. was indebted to B., and, for a fair consideration,
C agreed in writing to pay tlie debt to B, and afterwards upon a
demand from B. refused to do so. and A was subsequently com-
pelled to pay the debt, it was lield that, as between A and C, A
was to be considered as surety and C as principal, and that the
statute of limitations began to run against A's claims on C, not
from the date of the agreement, o-r of C's refusal to pay B, but
only from the time when A actually paid the money. Ponderv.
Carter, 12 Ired., 242.
31. On the compromise of a suit, the defendant agreed to pay
the lee of the plaintiff's attorney, wiiich he neglected to do, and
the plaintiif was compelled to pay it himself. If iras lield that the
statute did not begin to rmi against the plaintiff's claim until he
j)aid the money, and that it was not necessary to give notice of
the payment to the other party to entitle the plaintiff to bring
his suit. Deaver v. Carter^ 12 Ired., 267.
32. An executor's right to the personal property of his testator
commences at the death of the testator, and from that time the
statute of limitations begins to run against him. Arnold v.
Arnold, 13 Ired., 174.
33. Where a party claims a title in himself under a convey-
ance from a rion compos mentis, and has possession under such
alleged title, he does not hold as bailee, but, although the orig-
inal owner is not barred by such adverse possession, on account
of his incapacity, yet when nis incapacity is*^ removed, or he dies
leaving an executor, the statute begins to run. 1 bid.
34. Where A in a settlement with B was allowed a credit of
a certain sum due from B to C, it itms lield that, in assumpsit for
money had and received by C against A, the cause of action
was not complete until the plaintiff gave notice to the defendant
that he accepted him as his debtor, and the statute did not
begin to run until such notice was given. Carroivay v. Cooi\
Busb., 173.
35. A put into the hands of B for collection a claim against C
and D, and a judgment having been obtained thereon, and a^.fa.
levied on the property of C, A, B and C met at the house of C
on the day appointed for the sale, when C paid to B one-half of
the debt, which was immediately paid to A, and it was agreed
between B and C, in the presence of A, that B should pay the
residue of the debt to A, and if it should not be collected out
of D, C would repay it to B, and shortly after C paid the residue
to B. In an action by A against B, it was held that what liad
LIMITATIONS— STATUTE OF— 1-IL 877
taken place at the house of C was equivalent to a demand by A
for a payment from B, and, therefore, the statute began to run
from that time. Daniel v. Whitfield, Busb., 294.
36. Where a person had been appointed executor, but did not
qualify or renounce, it was held that he could not set up an
adverse possession of a slave under a bill of sale obtained from
the testator before his death, until some one qualified as exec-
utor or administrator, and that the statute of limitations would
not begin to run until such qualification and a demand, when no
adverse possession of the slave had commenced in the testa-
tor's life time. Johnson v. Arnold 2 Jones, 113.
37. Where one receives money as agent for another, no cause
of action accrues until a demand is made, and consequently the
statute begins to run only from that time. Hyman v. Gray, 4
Jones, 155,
38. On a breach of a warranty of the soundness of a slave, the
statute begins to run from the time when the contract of war-
ranty was made, and not from the time when the injury befalls
the purchaser, arising from the unsoundness. Baiicumr, Streater.
5 Jones, 70.
39. Where a female slave is held adversely and has a child
born during the time, the statute will not begin to run as to the
child but from the time of its birth. Houstonv. Bibb, 5 Jones, 83.
40. Where the plaintiff, living in Virginia, had put a note
into the hands of the defendant, who collected it, and it was
proved that, at the time of employing another person to demand
it of him, the plaintiff said that he had once before sent the
defendant's receipt over and got nothing. It was held that this did
not amount to the proof of a demand made more than three
years before the bringing of the suit, so as to put the statute in
'motion. Brool's v. Walters, 8 Jones, 428.
See (Ejectment — Trespass for v>ie.s??e profits, 1.) (Husband and
Wife — Husband's interest in his wife's estate, 12.) (Surety and
Principal, 9.)
\U WHEN THE STATUTE \S\hh, OR WILL NOT, BAR IN PERSONAL ACTIONS.
1. An acknowledgment to an executor will prevent the bar of
the statute, as well as wlien made to the testator. Billeics v.
Botigan, I Hay., 13, (18.)
2. To repel the statute, there must be an acknowledgment of
the debt, not simply of a fact which may show that the debt is
unsatisfied. Fenjmon v. Taylor, 1 Hay., 20.
3. A defendant wrote the plaintiff: " I would rather come to
a settlement, although I should allow the account as insisted on
by you, than wait the event of a lawsuit;" and it icas held that
these words took the case out of the statute. Ferguson v. Fitt,
1 Hay., 239, (274.)
4. A direction by will, that the testator's just debts should be
878 LIMITATIONS— STATUTE OF— II.
paid, was held to prevent the operation of the statute of limita-
tions. Anonymous, 1 Hay., 243, (279.) (Overruled; see Walker
V. Campbell, 1 Hawks, 304.)
5. The time between the 6th of March, 1773, and the
1st of June, 1784, is not computed in this state, in questions on
the statute of limitations. Sladev. Smith, 1 Hay., 248, (2(i6.)
fi. The statute cannot be pleaded by any other person than the
defendant. Anonymous, 1 Hay., 459, (528.)
7. The expressions as to a note : " It was at the desire of my
mother I gave it; I will not pay it; Rosser ought to pay it; I
Avill speak to him about it:" held to take the case out of the ope-
ration ot the statute. Cobliam v. Blosely, 2 Hay., 6, (151.)
8. The words: '' I have credited himni my account with the
value of the certificates; if he will meet me at Newbern I wall
settle with him:" held to take the case out of the statute.
Toomer v. Long, 2 Hay, 18, (169.)
9. If a suit be brought before the three years have expired
and there be a non-suit, the plaintiff may sue again within,
twelve months, and then only the time elapsed before the first
action shall be counted. Anonymmis, 2 Hay., 63, (231.)
10. If the new action be not commenced within twelve months
after the non-suit, then the time elapsed during the pendency of
the former suit shall be counted. Ibid, S. P., Pearce v. House,
Ibid, 386, (588. )_
11. If the plaintiff" produce an account, in wliich he has given
the defendant credit for an article witJiin three years, and the
defendant claim advantage of the credit, and examine testimony
to show that it ought to have been more, it will be considered
equivalent to his keeping an account against the plaintiff, and
prevent the statute from barring the plaintiff's account. Neic-
some V. Person, 2 Hay., 242, (427.)
12. A reference to arbitration will take a case out of the stat-
ute. ColklTig V. T.ackston, Conf Eep., 93, (225.)
13. An action of debt on a promissory note not under seal is
not barred by the statute. Johnston v. Green, 1 Car. L. E., 516,
(129.) (Altered, see liev. Code, ch. 65, sec. 3.)
14. When the wife was an infant at the tune the act of 1806,
relative to parol gifts of slaves, began to run, and became covert
during her infancy, the act cannot be set up against a suit
brought bv her husband and herself Allen v. Gentry, 2 Car. L.
R., 609, (411.)
15. All action of assumpsit by a husband and wife, for money
earned by the wife before marriage, will be barred by the statute
after three years, notwithstanding the coverture, because, the
cause of action having arisen before marriage, the statute cannot
l)e stopped by the coverture. KUlian v. Watt, 3 Murph., 167.
16. The statute limiting penal actions contains no saving of
any kind, and, therefore, a second action cannot be brought with-
LIMITxVTIONS— STATUTE OF— TI. 879
in twelve months after a non-suit in the first, in order to save it
from the operation of the statute. Clark v. Rutherford 3 Murph.,
237. (See Rev. Code, ch. 65, sees. 3 and 8.)
17. The act of 1814 did not allow three years after its passage
for bringing actions of debt upon simple contracts, where the
cause of action then existed, but limits the bringing of the action
to " three years after the cause of action accrued." Sharpe v.
Jones, 3 Murph., 30G. (See lie v. Code, ch. 65, sec. 3.)
18. "Whenever the statute is a bar to the recovery of o)ie of
the plaintiffs to an action of detinue, it operates against all, be-
cause the disability of one does not save the rights of others.
The statute protects the rights of those who are incompetent to
protect themselves; but when some of the parties are competent,
they oug-ht to take care of the interest of all, by bringing suit
within time. Riden v FrioJi, 3 Murph., 577. (One joint owner
ot personalty may now be barred without affecting the others.
Rev. Code, ch. 65, sec. 21.) .
19. A debt barred by the statute of limitations is not revived
by a direction in the debtor's will, that certain property be sold.
" and with the proceeds thereof, after paying my debts, they,"
&c. Walker v. Cam'pbell, 1 Hawks, 304.
20. An acknowledgment by one partner, made after the dis-
solution of the firm, will prevent the operation of the statute on
a claim existing against the partnership. Mclntire v. Oliver, 2
Hawks, 209. (Altered; see Rev. Code, ch. 65, sec. 22.)
21. It is a good replication to a plea of the statute, that the
plaintiff brought his action within a year after a non-suit, and
that the cause of action is the same. Shillington v. Allison, 2
Hawks, 347. (See Rev. Code, ch. 65, sec. 8.)
22. The acknowledgment, which will take a case out of the
statute, must be one of a present subsisting debt. Hence, Avhere
a defendant, in an affidavit for a continuance, stated " that the
action was founded on his guarranty, and by the absent witness
he expected to prove such laches on the part of the plaintiff as
to dischf rge him from his engagement," it was held, that there
Avas no acknowledgment sufficient to take the case out of the
statute. Bank of Neiohern v. iSnead, 3 Hawks, 500.
23. Cumulative disabilities will be allowed; hence, if an in-
fant have cause to sue in detinue for a slave, and marry before
coming to full age, her coverture will protect her from the ope-
ration of the statute. Davis v. Cooke, '6 Hawks, 608.
24. When a parent jnits a slave into the possession of a child,
without an express parol gift, this possession is not adverse, and
does not divest the title of the parent or bar his action 'Justice
V. CqU's, 1 Dev.. 469.
25. The acts of 1715 and 1814 do not bar the action given
against justices of the peace by the act of 1790. Governor v.
880 LIMITATIONS— STATUTE OF— IT
McAffee, 2 Dev., 15. (See Rev. Code, ch. 65, sec. 3 and eh. 78.,
sec. 7.)
26. The proviso in the 6th section of the act of 1715, whereby
the operation of the statute is suspended upon a judgment for
the plaintiff and its reversal for error, or upon an arrest of judg-
ment on a verdict in his favor, provided he biing a new action
within a year, has been extended by construction to the cases of
an abatement and a non-suit. The proviso is founded on the
idea of merits in the plamtifF, though inartilically ascertained;
and its extension, by construction, to an abatement and nonsuit
is based upon the tact that the merits are indift'erent, and the
plaintiff has been diligently endeavoring to assert them. Mor-
rison v. Connelly, 2 Dev., 233.
27. The act of 182(», for quieting the title of persons in posses-
sion of slaves, does not pass the title to a donee, who has been in
possession three years under a gift void by the act of 1806. Pal-
mer V. Fo.ucif, 2 bev., 240. (See Rev. Code, ch. 65, sec. 20, and
ch. 37, sec. 17.)
28. The proviso in the act of 1820^ for quieting the title to per='
sons in the possession of slaves, extends not oidy to gifts of slaves
void by the act of 1806, but also to those which are void by the
act of 1784. Peterson y. JViUiamsov, 2 Dew., d2Q. ^
29. In order to take a case out of the statute of limitations, tlie
new promise or acknowledgment must be an express promise to
pay a particular sum, absolutely or conditionally, or aii admis-
sion of facts from which the court can infer an obligation for a
certain sum, or that the parties are willing to account and to
pay the balance when ascertained. Hence, mere vague decla-
rations, from which the court and jury can only surmise that
the defendant possibly meant to admit himself a debtor for some
undeiijied amount, and without reference to any tiling that can
make it certain, are not sufficient; as where a defendant admit-
ted that there ought to have been a settlement between him and
the plaintiff, and added " but little if any thing was due." Pee-
bles V. 3Iason, 2 Dev. 367.
30. Actions on justices' judgments, which Avere barred by the
act of 1820, were not revived by the act of 1825, which extended
the time of limitation to seven years. Tuijlor v. Harriso7i, 2
Dev., 374. (See Rev. Code, ch. 65, sec. 6.)
31. The act of 1786, respecting endorsed bonds, limits only
the action on the case given to the endorsee; but when a bond,
after beiug endorsed, became again the property of the obligee,
there is no statute limiting his action of debt. Pliifer v. Giles,
2 Dev., 41)8. (See Rev. Code, ch. 65, sec. 3.)
32. In debt upon simple contract, a replication of a ]iew
promise within three years is no answer to a plea of the statute
of limitations. Morrison v. Mortison, 3 Dev., 402.
33. When the plaintiff, to rebut the plea of the statute of limi-
LIMITATIONS— STATUTE OF— II. 881
t&tions, proved that the defendant's testator, in his last sickness,-
sent for liira, and expressed great anxiety to adjust an unsettled
account between them, and upon being disapjDointed, made
entries of credits to wliich he was entitled, but it was not proved
that he admitted a balance to be be due to the plaintiif. It tvas
held that the eviden(;e was not sufficient to authorize a verdict
for the plaintiff", but that it sliould be left to the jury, with instruc-
tions to find for the defendant, uidess the testimony proved the
testator to have been willing that the accounts should be settled
after his death. BaUenger v. Barnes, 3 Dev. 460.
34. Although no laches are imputed to the State, and as to it
the rule is nnllum tempiis occurrit, yet this is not the case as to
those bodies to whom the execution of public trusts is confided;
and where the county court brought an action of assumpsit
against a treasurer of public buildiiigs, itioas held that the stat-
ute might bar. Armstrong v. BaUon, 4 Dev., 5G8.
35. The possession of slaves for more than three years, by the
trustees of a religious society, for its benefit exclusively and
against the rights of all others, is a bar to an action of detinue-
for the slaves, not^athstanding the society considers slavery as
sinful, and holds the slaves for the purpose of giving them the
advantages of frec?nen; because the cause of action arose from
the conversion, and not from the intent with which it was made.
White V. White, 1 Dev; and Bat., 260.
36. The mere existence of disconnected and opposing demands
between two parties, one of which demands is of recent date,
will not take a case ont of the statute. There mu.st be mutual
running accounts, having reference to each othtir, between the
])arties, for an item within time to have that effect. Green v.
Culddengh, 1 Dev. and Bat., 320.
37. By the act of 17 5, one year is the limitation to an action
of trespass vi et armis to jDcrsonal property. /Sivvnk v. Fort, 2
Dev. and Bat., 133. (The limitation to such an action is now
three years. See Rev. Code, ch. 65, sec. 3.)
38. A count, in a declaration for goods sold and delivered by
the plaintiff, embraces equally the original promise, implied by
the law from the delivery of the articles, and a siibsequent
express promise to pay for them ; because the time of the promise
does not constitute a material part of the contract declared on.
Jlence such subsequent promise, if made within t)u-ee years,
may be proved in support of the declaration, and to repel the
p'ea of the statute of limitations. Finn v. Fitts, 2 Dev. and
Bat., 236.
39. When two persons having opposing claims t© certain
slaves, both bail then) toa third person, thepossession of the bailee
is not such a possession of either claimant, as to divest the better
title under the act of 1 820, and give it to the other party. Ilandin
V. Alston, 2 Dev.. anl Bat., 26'J. (See Rev. Code, ch. 65, sec. 20.)
14*
882 LIMITATIONS— STATUTE OF— 11.
40. An ackilowledgment or promise, to repel the statute of
limitations, must be distinct and explicit, and plainly refer to
the debt in question ; and where the plaintiif 's claims consisted
of two debts only, one of which was barred, a letter from the
defendant to him as follows : " I do now and have always appre-
ciated your favors and kindness to me; and they shall not go
■unrewarded by me; but I sliall want some little time to meet
your demand," is too vag'ue to entitle the plaintiff to recover, as
it may apply only to the debt which was not barred, jSiualhuood
V. Smallwood, 2 Dev. and Bat,, 330.
41. A promise to pay a debt barred by the statute of limita-
tions revives the old contract, or is evidence of similar continuing
promises irom the time the contract was made. Hence it follows
that the first promise should be declared on ; and if the new
promise be made after the writ is sued out, the plaintiff may
recover. Falls v. SIterril, 2 Dev. and Bat., 371.
42. If a new promise, taking a case out of the statute, be made
by or to an executor then the action must be brought on it.
Ibid.
43. When the new promise is conditional, upon the perform-
ance of the condition it is evidence of a previous absolute prom-
ise, i bid.
4:4:. Where the guardian of a lunatic, under an order for the
sale of the lunatic's property, became the purchaser of a slave,
and upon the lunatic's becoming of a sound mind, settled with
him, and obtained a receipt for "all demands," and afterwards
retained possession of the slave for more than three years, it was
held that, although the purchase gave the guardian no title, the
settlement and receipt were evidence of a demand for the slave,
and that the subsequent possession was adverse, and barred the
action of the lunatic. Boyce v. Wa7-ren, 2 Dev. and Bat., 498.
45. The possession of a slave by a donee, under the act of 1806,
is that of a bailee, and no length of such possession will bar the
title of the donor; but if he demand possession, and the donee
refuse to deliver up the slave, claiming him as his own, his pos-
session will then become adverse to the donor, and after three
years will bar his action. Martin \. Harhin, 2 Dev. and Bat., 504.
4(i. In order to repel the statute of limitations, there must be
either an express promise to pay, or an explicit acknowledg-
ment of a subsisting debt. Mastin v. IVaugh, 2 Dev. and Bat.,
517.
47. In order to repel the statute, there must be either an
express promise to pay, or an explicit acknowledgment of a
subsisting debt from which the law can imply a promise to pay
it. But if the debtor, at the time he acknowledges the debt,
refuses to pay it, or offers to pay a smaller sum, saying that if
liis offer is not accepted he will plead the statute, there is noth-
ing from which the law can imply a promise to pay the debt.
IIMITATIOXS-^STATUTE OF— 11. 883
«i"ncl it will not be taken out of the operation of the statute. Mc-
Glensij V. Fleming^ 4 Dev. and Bat., 129.
48. Wherever thy statute is a bar to the recovery of one of
eeveral parties, plai.itiffs in an action of detinue, it will operate
against all, though the others were under the flisability of in-
fancy. Montgomery y. 7r?/mi5, 4 Dev. and Bat , 527. (In such
case the bar of one will not now bar those under disability. See
Kev. Code, ch. 65, sec. 21.)
49. Probably if there be an explicit acknowledgment of a
debt, and a distinct admission that it has not been paid but still
exists, and nothing more be vsaid about the mode or time of pay-
ment as proposed by the debtor, or of his objection to pay upon
the ground of the statute of hmitations, or some other defence,
then such unqualified admissions might go the jury as evidence
of a new pr^misa But if the language of the party be so vague
and indeterminate, as not in itself to amount to a promise, or to
eatisfy the mind, either from its own t<^rm8, or something referred
to, what the party meant to engage, there is nothing to repel the
statute. Wolfe v. Fleming^ 1 J red., 290.
50. To repel the bar created by the statute, the words ought
not to leave the meaning in doubt, but should clearly indicate
the intention to assume or renew the obligation for the debt.
Hence, where it was proposed to the defendant that if he would
pay the principal, the interest should be forgiven, and he de-
clined the proposition, and in turn, requested the witness to buy
the debt, (which was about $(355 principal, and about $180 in-
terest,) for $500, and expressed the opinion that the creditor
"would accept that sum, it teas held that these words did not take
the case out of the statute; that this language imported more an
otler of compromise, than a promise to pay the debt. Ibid.
51. Proof that the defendant said at one time, "he owed the
plaintiff right smart of money," and at another, "he owed him
the biggest debt he owed to any person," will not take a case
out of the statute. — Rainey v. Link, 3 Ired., 376.
52. A plaintiff, having recovered a judgment against a person,
issued a svi. fa. against his bail, to which the bail pleaded that
no ca. sa. had issued against his principal, and the issue thereon
was found in his favour. The plaintiff, then, after the expira-
tion of some years from the rendition of the judgment against
the principal, issued another sci. fa. against the bail, to which
the latter pleaded the statute limiting the time within which a
sci. fa. should issue against bail, it ivas held that the time, du-
ring which the former proceedings against the bail were pend-
ing, should not be deducted from the computation of the time with-
in which the sci. fa. was to be sued out. Deviney v. IVells, 4
Ired., 30.
53. The bailee of slaves, where there is nothing to change the
relation, will not hold them adversely to the bailor nor to his
884 LIMITATIONS— STATUTE OF— II.
executors, but if^upon the assent of the executors, there be a set-
tlement of the estate among- all the legatees, and the bailee of the
slaves be permitted to take and keep them as his own upon the
supposition that they belong to him, his possession will become
adverse from the time of the settlement and, if continued for
three years, will bar the claim of the executors. Simpson v. Bos-
loell 5 Ired., 49.
54. An act or acknowledgment by one partner, after the dis-
solution of the partnership, which prevents the operation of the
statute as to that partner, will also prevent its operation as to
the other partners. Walton v. Robinson, 5 Ired., 341. (Altered.
See Kev. Code, ch. G5, sec. 22.)
55. Making a payment on a promissory note repels the statute.
It is assuming the balance anew. Ibid.
56. A legal presumption of the satisfaction of a simple con-
tract arises only on the expiration often years fromthe time the
cause of action accrued ; therefore, when the action was upon a
receipt of the deiendant's testator, who was a constable, for notes
belonging to the plaintiff to collect, and it did not appear by any
actual proof that any demand had been made by the plaintiff un-
til fifteen years after the date of the receipt, but this demand
was made within three years berore the bringing of the action,
it uris held that the judge erred in instructing the jury, that
though there was no d<^mand before the one proved, and there-
fore the ordinary statute of limitations could not run, yet that
after the lapse of ten years from the date of the receipt the law
presumed the claim Settled, unless the contrary appeared. But
he might properly have left to the jury the great length of time
which had elapsed, as a circumstance from which they might
have inferred, that either a settlement had been made, or that
there had been a demand for a settlement so long ago as to let
in the operation of the statute of limitations, Spruill v. Daven-
prrf, 5 Ired., 663.
57. A payn)ent, made by one of the makers of a promissory
note within three years, will take the debt out of the statute of
limitations as to all Davis v. Coleman, 7 Ired., 424. (It would
not now have such an effect. See Rev. Code, ch. 65, _sec._ 22.) _
5<S. Where slaves are bequeathed, the statuteof limitations, in
behalf of one wlio has purchased them from a stronger and kept
them in possession the requisite time, gives a title against the'
executor, and a subsequent assent by him to the legacy will
not enable the legatees to sustain an action for the slaves at law.
B-vneft V. Williamson, 8 Ired., 121. (See Rev. Code, ch. 65,
sec. 20.)
59. The saving in the statute as to slaves is meant for one who
has an original cause of action at law. Ibid.
60. To take a case out of the statute, the promise or acknowl-
edgment must be an express promise to> pay a particular sum
LIMITATIONS— STATUTE OF— II. 885
either absolutely or conditionally; or such an admission of facts
as clearly shows, out of the party's own mouth, that a certain
balance is due, from which the law can imply an obligation and
promise to pa}"; or that the parties are yet to account-, and are
willing to account and pay the balance then ascertained. Sher-
rod V. Bennett, 8 Ired., 805).
61. In an action for harboring a slave, to which the statute of
limitations Avas pleaded, the plaintiff could not prove any act of
hai boring within three years before suit brought, but proved
that the defendant had liarbored the slave for several years be-
fore that period. It was held that there was no evidence that there
was any harboring within three years, to prevent the bar of the
statute, ^ariies v. Farmer, 9 Ired., 202.
62. To repel the statute, a promise to pay must be proved,
either express or implied. And the law will imply a promise,
where there is an acknowledgment of a subsisting debt, unless
there be something to reluit the implication, i^mith v. Leeper^
10 Ired., 80.
63. If oue pay a debt in part, the law implies a promise to pay
the balance, in the absence of any circumstance to negative such
a promise. I bi I.
64. Where the copy of an account was shown to the defend-
ant, and she said, "she had no money, but wcmld call in a few
days and settle it," and that she did not intend to cut him out
of it," it icas held that this was an explicit acknowledgment of
a subsisting debt, from which a 'promise to pay might be im-
plied, if indeed there was not evidence of an express promise.
Ibid.
65. Where only one, of several tenants in common of a ne-
gro, sues in tort, the statute cannot, if he were under disal)ility,
operate upon him, even though it might against all, if his co-
tenants, against wliom it was available, had joined in the action.
Qiiccre, how it would be, if the objection had been taken by a
special plea. H'eart- v. Borge, 10 Ired., 169. (One joint owner
may now be barred while the others are not. See Rev. Code, ch.
65, sec. 21 )
iaix A promise of a party that he will settle with another wall
only take a case out of the statute of limitations, when it clearly
appears that the promise referred to the particular claim. Arey
V. Sieven.son, 11 Ired., 8(5.
67. A new promise will not prevent the bar of the statute to
a suit on a jn.vtice's judgment; for the replication of a new pro-
mise to a plea of the statute is confined to actions "on promi-
ses." Taylor v. Spivei/, 11 Ired., 427.
68. x\fter a debt had been Ijarred by the statute, the debtor
said to the creditor, " imless J. R. has paid it for me, it is a just
debt and I will pay it;" and again "it is a just debt and I will
payit, .if I cannot prove tliat it lias been settled by J. R.," it
886 LIMITATIONS— STATUTE OF— IL.
ivas held that the debt was thereby taken out of the statute, and
that by such declarations the onus of proof that the debt had
been paid rested on the defendant. Bichmond v. Fugua, 11
Ired., 445.
69. When a plaintiff; in order to bar the operation of the stat-
ute, gives in evidence words used by the defendant, the language
must be such as, without straining, imparts a willingness and.
intention thereby to assume the debt, or amounts to an unequiv-
ocal acknowledgment of its subsistence and obligation. Taylor
v. Stedriian, 11 Ired., 447.
70. In a conversation bet wean the plaintiff and the defendant
in relation to the matter in dispute, the former said to the latter,
" that matter about Frank's hire in 1842 must be fisted," when
the latter asked, " will not other notes or judgments do instead
of mine?" and the plaintiff" remarked "yes, if they are good,'*"
when nothing further passed between them, it ivas held that the
defendant's expressions did not revive the debt, and bar the
operation of the slatute. Ibid.
71. In detinue by a husband and wife for a slave, when it ap-
peared that the slave liad been given to A for life^ and after her
death to the feme plaintiff", who, at the death of the tenant for
life, was an infant and married,^ and had never since been dis-
covert, it was held that the action was not barred by the statute
of limitations. McLean v. Jachsoii, 12 Ired., 149.
72. In an action of assumpsit, brought for a certain sum of
money agreed to be paid, it is no bar to the plea of the statute
of limitations, that the defendant within three years promised
to pay the debt in good notes or judgments, which promise was
accepted by the plaintiff" Taylor v. /Stedman, 13 Ired., 97.
73. Where a sci.fa. on a judgment is issued, and the plaintiff"
is nonsuited, and issues a second sci. fa. within the time pre-
scribed in the statute of limitations, a variance between the
latter and the former is not material, if both be for the same
cause of action and between the same parties. Trice v. Turren-
tine, 13 Ired., 212.
74. To repel the statute, a promise must be either for a sum
certain, or for that which may be, and afterwards is, reduced to
a certainty. 3Ioore v. Hyman, 13 Ired., 272.
75. A brought a suit against B for a certain amount of herrings
placed with him for sale, and the parties disagreed about six
barrels for which B claimed a credit. B asked A "-why he sued'?"
To which the reply was, "for a settlement," to which B said, "we
are willing to settle and always have been willing;" and the
matter was then, by agreement, referred to arbitrators whenever
decided; and the statute being pleaded, it loas held that the
promise implied in the words used was uncertain as to the sum,
that sum never having been ascertained in the mode agreed
LBIITATIONS— STATFfE OF— 11. 887
on, and the promise was too vague to have any legal effect
Ihid.
76. To take a case out of the statute of limitations, the promise
must be certain or capable of being rediTced to a certainty, and
the claim sued on identified, as that in regard to which the
promise was made. Hence, where an account was presented to
the defendant and he said " I reckon it is correct, but 1 have
sets off against it, and would ratheV settle with the plaintiff
myself," and tlie witness could not say certainly that the account
exhibited on the trial was that which was presented to de defen-
dant, it ivas held that this was not sufficient to repel the bar of
the statute. Shaw v. Alien, Busb., 58.
77. A vague admission of indebtedness, or a promise to pay
an indefinite sinn, aviU not repel the bar of the statute; e. g., a
declaration of the defendant that he intended to pay the plaintiff
for his services, no sum being named and no account being
referred to, or other matter by which the amount might be
reduced to a certaiuty. MeBride v. Gray, Busb., 420.
78. The six months, within which an action on the case for words
spoken must be brought, are lunar and not calendar months, under
the act Rev. Stat., ch. 65, see. 3. Rives v. Gidlirie, 1 Jones, 84. (See
Rev. Code, ch. 65, sec. 3; but now by the Rev. Code, ch. 108, sec.
2, par. 3, a month is to be taken, when iised in a statute, to
raean a calendar month unless it is otherwise expressed.)
79. To take a claim out of the operation of the statute of lim-
itations, there mus^t be a promise, express or implied, to pay a
certain and definite sum, or an amount capable of being reduced
to a certainty by reference to some paper, or by computation, or
in some other infallible mode, not depending on the agreement
of the parties, or the finding of arbitrators or a jury. BIcRae v.
Leary^ 1 Jones, Dl.
80. A promise to ]iay such sum as the plaintiff might deem
just, when he should bring forward his account, will not repel the
bar of the statute. Long v. Jameson, 1 Jones, 476.
81. Where an agent of the plaintiff, having in his possession
several notes and an account against the defendant, demanded
payment, but did not show him the account uor state its amount,
and the defendant replied that " he had claims against the plain-
tiff and would see him and settle," and another agent presented
him the account together with certain notes, but the defendant
did not examine the account, and the agent did not tell him the
amount of the account, though he did tell him the amount of
both notes and account, to which defendant said " he would
call at plaintiff 's store and settle, or attend to it;" it ivas held
that neither of these declarations of the defendant amounted to
a recognition of any certain debt, so as to take the account out
of the operation of the statute. Loftin v. Aldridge, 3 Jones,
S28.
LIMITATIONS— STATUTE OF— 11.
82. The act of 1852, ch. 51, sec. 2,^,providing "that the time,
during which the parties to a suit shall not have been resident
in this state, shall not be given in evidence in support of the
plea of the statute of hmitations, " did not apply to and revive
claims barred before its passage. Phillips v. Cameron, 3 Jones,
390. (The act of 1852 was not re-enacted in the Eev. Code; see
ch. 65.)
83. To say of actionable words spoken, which were barred by
the statute of limitations, " I never denied speaking those words,
and I will stand up to them," is only an acknowledgment by the
defendant that he had spoken the words, and not a repetition of
them, which if made within six mimths would prevent the bar
of the statute. Fox v. Wilson, 3 Jones, 485.
84. Where an unsealed note, payable to bearer, was transfer-
red by delivery to several holders successively, and after three
years from its maturity a suit was bri^ught on it, it ivas held that
a new promise, made to a previous holder, could not avail a sub-
sequent holder to repel the statute. Thomjjson v. Gilreaih, 3
Jones, 493.
85. When an action of debt is brought on a simple contract,
no subsequent promise, however explicit, can be relied on to lake
it out of the operation of the statute of limitations. Brannock
V. B iihinell, 4 Jones, 33.
86. Where there was an agreement to pay a debt in good cash
notes, which was barred by the statute of limitations, and after-
wards, within three years before the bringing of the suit, the
debtor, who was applied to for a certain balance alleged by the
plaintiff to be still due, said he would " settle and make all right
in good cash notes," to which the plaintilf assented, it vms held
that as the original and new promise were made between the
same parties and were to do the same thing, the bar of the stat-
ute was repelled; and that in such case tlie replication to the
plea of the statute was a general and not a special one. Mc-
Curryy. 3IrKesson, 4r Jones, blO.
87. As a promisory note payable on demand is due immedi-
ately, it will be barred by the statute after three years. Cald-
well V. Rodman, 5 Jones, 139.
88. Where the account, on which an action was brought, was
read over to the defendant, who said " he supposed it was right,
and was willing to settle, and give his note,vbut he thought the
plaintiff" had not given him all the credit to which he was en-
titled," it was' held that there was nothing in this expression to
rebut the statute. 3Iiils v. Taher, 5 Jones, 412.
89. The act of 1848, Kev. Code, ch. (55, sec. 10, saving causes
of action against non-residents from the operation oi the statute
ot limitations, applied to causes of action existing at the time
when the act went into effect, provided they had not then been
LIMITATIONS— STATUTE OF— 11. 889
''tarred by a previous act of limitations. Cox v. Broivn, 6 Jones,
100.
90. Tlie bar of the statute of limitations is not repelled by
the sending of a draft by the debtor and its receipt by the cred-
itor within three years, if the debtor did not njake any allusion
to, or recognition of the account, or any debt whatever, ^w.s-
sey V. B/ir<jivyn, () Jones, 385.
91. When, in an account consisting of several items, the last
is within three years before suit, the effect will not be to
bring the whole account within date, uidess it appear that
there were mutiial accounts between the parties, or an account
of mutual dealings between them kept by one with the knowl-
edge and concurrence of the other. Ibid.
92. A request by the endorser of a promissory note, made be-
fore it ivas barred by tlie statute of limitations, that the endor-
see would collect it or release him soon, is not an acknowledg-
ment from which a ivew promise to pay can be implied, so as to
repel the bar of the statute. Fas's v. Conrad, 7 Jones, 87.
93. A judgment of nonsuit is within the equity of the proviso
to the 8th section of the Odth chapter of the Revised Code, and
the plaintiff" may commence a new action within a year after the
termination of the ffrst. Fresbwafer v. BaJcer, 7 Jones, 255.
94. Where, upon the transfer of a note, an endorsed credit
was 6verlooked, so that the endorsee of the note paid the full
amount called for in the face of the paper, and afterwards on
being applied to, the endorser corrected the mistake and paid
back tlie amount of the credit which had been overlooked, it
was Jield that this was no promise express or implied to pay the
note nor an acknowledgment of a subsisting debt, so as to
repel the bar of the statute. Gilmer v. McMurray, 7 Jones, 479.
95. Where a statiite incorporating a company gave, as a reme-
dy for the recovery of the subscription of stock, a sale of the
stock within three years after an assessment, and then a suit for
the balance due, it ivas held that the statute of limitations would
not bar the suit until three yeai's after the sale of the stock, be-
cause no balance could be ascertained until such sale. Cape
Fear and Deep River Naviqa.tion Company v. Wileox, 7 Jones,
481. . ■
9(). The time which elapsed during the residence of a party in
another state, while the act of 1852, ch. 51, sea 2, was in force,
was held, not to operate as a bar under the statute of limitations,
though that act was repealed before the statute of limitations
was pleaded. Do<j<jttt v. Mosely, 7 Jones, 587.
See (Executors and Administrators — Of suits by executors and
administrators, 11.) (Executors and Administrators — Of refund-
ing bonds taken fi'om legatees and next of kin, 2.) (Husband
and Wife — Of actions by and against husband and wife, 12.)
890 LIMITATIONS— STATUTE OF— II-III-IV.
(Limitations — When the statirte begins to rnn.) (Practice —
Discontinuance — Death of the parties, 6.)
HI. LIMITATION OF ACTIONS ON OFFICIAL BONDS.
1. Where a suit on sheriff's bond was suffered to abate as to
one of the ^ureties who died, although a sci. fa. against his rep-
resentatives was ordered, and was dismissed as to the other par-
ties after having pended for many years; but before this dismis-
sion, though after more tlian three years had elapsed since the
death of the surety, another action was brought against his rep-
resentatives, it UK(s hehJ, that the statute barred the action under
the act of 1810, notwithstanding the pendency of the former suit
or the order for the sci. fa. Governor v. FranMin., 3 JMurph., 213
(Suits on bonds of sheriffs are now barred after six years. Eev.
Code, cli. 65, sec. 5.)
2. An action on a sheriffs official bond, which is barred by the
statute, cannot be revived by a promise to pay within three
years, whatever remedy there may be, if any, on the promise it-
self Governor v. Hnnrahan, 4 Hawks, 44.
3. A suit on the official Doiid of a sheriff, who has been fixed
with the payment of a certain amount as special bail, is not
barred so as to protect his sureties, until six years a ter final
judgment against him as bail. Barker v. 3[miroe, 4 Dev., 412.
4. An action commenced oy a warrant against the sureties of
a constable for money collected by him, under the Rev. Stat., ch.
81, sec. 3, can be barred only by the length of time that bars an
action on the constable's bond. Wilson v. Coffield., 5 Ired., 513.
(See Rev. Code, ch. 78, sec. 4.)
5. Where a constable receive claims on solvent persons to col-
lect, in Febniary, 1842*, and the suit on his official bond was com-
menced in October, 1848, it was held that the suit was not barred
by the statute. State v. Pattori, 13 Ired., 421.
6. The act of liinitatioii as to official bonds. Rev. Stat., ch. 65,
eec. 8, bars the action on the bond of a clerk brought for his not
paying over fines and forfeitures, if not commenced within six
years from the end of three months after he has received them,
and not within six years from the time when a demand was
made for them. Little v. Riclmrdson^ 6 Jones, 305. (See Rev,
Code, ch. 65, sees. 5 and ch. 2^, sees. 6 and 7.)
IV. EFFECT OP THE STATUTE UPON THE TITLE TO SLAVES.
1. An adverse possession of a slave for three years confers on
the possessor a complete title to the slave. Gall v. Ellis., 10 Ired.,
250. (The same principle is now extended to " other personal
property." See Rev, Code, ch. 65, sec. 20.)
2. An adverse possession for three years of one, who is in fact
LIMITATIONS— STATUTE OF— IV-V. 891
a slave, will confer a title on the possessor, though he may think
the slave to have been free, and only kept him until some person
could show a good title to him as a slave, ^tate v. Jones, 11
Ired., 154.
3. If a parent places a slave in tlie possession of his child upon
his or her marriage, and afterwards bequeaths the slave to a
third person, the possession ot the child upon the death of the
parent will become adverse to the legatee, and if continued for
more than three years, will confer the title upon the possessor.
Cotten V. Davis, 4 Jones, 416.
4. Where a slave was placed by a father in the possession of
his daughter, and remained thereuntil his death, after which an
issue was made up to try the validity of his will, which pended
eight years, when the will was established, it iims held that
a demand made by the administrator ^je?/c?e?i'e lite, and a refusal,
did not make the daughter's possession adverse to the right of
the executor, and that he Avas not barred by the possession for
more than three years under such circumstances. Wooten v.
Jarmoii, 6 Jones, 111.
5. ^^'here a person takes possession of slaves as a bailee, and
afterwards continues to hold them, claiming them as his own,
but without doing any act to change the nature of his possession,
he cannot acquire a title to them under the statute of limitations.
Koonce v. Perry, 8 Jones, 58.
See (Gifts— Of slaves since the act of 1806, 7-13-14.) Slaves
— Sales and gifts of slaves, 16.)
V. AS TO SCITS AGAINST EXECUTORS, ADMINISTRATORS, HEIRS AND DE-
VISEES.
1. These words used by one of two administrators when the
note of his intestate was presented : " it is the signature of the
deceased, and all his just debts shall be paid when the Holly
Shelter lands shall be sold," were held to take the case out of
the statute of limitations. Cobham v. Creedon, 2 Hay., 6, (152.)
2. The statute begins to run only from the time when letters
of administration are first obtained. Tuson v. Simpson, 2 Hay.,
147,(321.) i ' J'
3. The act of 1715, barring claims against deceased persons'
estates, is in force. Young v. Farrell, 2 Hay., 219, (392.) S. P.
Bry V. Boper, Conf Rep., 311, (397.) (But it was held to be
repealed by the act of 1789, in Ogden v. Witherspoon, 2 Hay.,
227, (404.) It was expressly continued in force by the act of
1799. See Rev. Code, ch. 65, sec. 11.)
4. It seems that the admission of a debt of the intestate by an
administrator will not take the case out of the statute of limita-
tions. Wilkings v. Marphj, 2 Hay., 282, (460.)
5. The act of 1715, (see Rev. Code, ch. 65, sec. 11,) requiring
892 LIMITATIONS— STATUTE OF— V.
creditors of a deceased person to make their claim within seven
years after the death of the debtor, makes no saving for any
description of person, and where the act makes none the court
conrt cannot make any. Bidhi/ v. Thorpe, 2 Hay., 34, (525.)
G. If the first seven years after the death of the debtor
cannot, for any cause, be computed, the next seven may. Ihid.
7. The act of 1715, while it was unrepealed, was suspended
in its operation by the acts disqualifying British adherents from
suing in our courts. It did not begin to operate as to such per-
sons till the end of the war, and then if the seven years were
not completed before it was repealed (if it were so, qu.,) by the
act of 17(S9, no bar could ever be operated under it. v.
Leu-is, 2 Hay., o4(J, (5o().)
8. A plea of the statute of limitations, not being a plea to the
merits, shall not be added after the pleadings are once made up;
therefore an executor will not be allowed to add the plea of the
act of 1715, if he neglect it at first. CcunjMl v. Hester, Tay.
78, (54.) ((^1., and see ReidY. Hester, Conf Eep. 488, (540,) and
other cases.)
9. The act of 1715 will bar a debt due on bond, though there
be no person entitled to sue. McGlellan v. Hill, Conf llcp. 479,
(582.) (See this case corrected in Jones v. Brodic, 3 Murph..
594.)
10. The act of 1715 will bar an action by a county trustee
against the executors of a county ranger, for money received in
that character by their testator, where more than seven years
had elapsed from his death to the bringing of the action.
Alexander v. Alexander, 1 Cai-. L. R., 273, (28.)
11. ^Yhere a lessee for fourteen years covenanted in an inden-
ture of lease to pay an annual rent during the term, and died at
the expiration of four years, it tviis lield in an action against his
executors, brought soon after the term had expired, for the rent
which liad never been paid, that the suit was barred by the act
of 1715, because the action was founded upon tlie possession of
the testator, and his pernancy of the profits, and the executors
were liable oidy as his representatives. Neil v. Hosmer, 1
Murph., 202.
12. The act of 1789 cannot be pleaded and relied on in an
action of dei)t, brtjnght against the devisees on the bondof their
devisor. HoUoioell v. Pope, 2 xMurph., i08, S. C. 1 Car. L. K. 221,
(17.) (See Rev. Code, ch. G5, sec. 12.)
13. The words of the act of 1789 do not provide any limita-
tion for suits brought against heirs and devisees, nor are they
within its equity or spirit. The act of 1715 (see Rev. Code, ch.
65, sec. ] l,^ was intended to protect the heir and every part of
the estate from the demands of creditors, and, therefore, fixes
the death of the debtor as the period from which the time is to
be computed, and does not require the demand to be made of the
LIMITATIONS— ST ATUTE OF— V. 893
executor, but leaves the enquiry from whom the demand is to be
made to be determined by the nature of the debt itself If by
the nature of the contract the heir is liable, the demand may be
made either of him or the executor If the heir be not liable, the
demand must be mode of the executor only. The act of 1789
was desig;'ned to protect the executor from such demands as he
alone is liable for in the first instance, or such as the creditor
ma}^ elect to enforce against him, and therefore fixes the quali-
fication of the executor as the period from which the time is to
be computed. Ibid.
14. Under the act of 1715, barring the claims of creditors
against deceased persons' estates, two circumstances must con-
cur to put the bar in operation, to wit, the death of the debtor,
and the simultaneous existence of the creditor. If, thereibre,
the creditor die before the debtor and no administration be taken
out on his estate in the lifetime of the debtor, the act will not
bar the claim. When the statute of limitations begins to run,
nothing v/ill sto]3 its operation, and if therefore a debtor die in
the lifetime of his croditor, whose cause of action has accrued,
the act will attach upon the claim of the creditor, although no
administration be taken out on his estate for more than seven
years. Jones v. Brodie, o Murjjh., 594.
15. There being in the act of 1715 no saving of the rights of
persons rmder any incapacity, tliat act is a bar to the claim of
an infant creditor of the decedent, brought more than seven years
after bis death. Rayner v. Walford, 2 Dev., 338.
1(1 The act of 1715 is a protection both to the executor and
the heir, and the act of 1784 (since repealed,) and the act of
1809, directing the surplus to be paid into the treasury and to
the University, do not affect the real assets, but only apply to
the personal estate, and give a remedy to the creditors, &c.,
against the State and the University, without affecting the pro-
tection given to the execukn- by the act of 1715. Ibid.
17. Tiie statute never begins to run until a cause of action has
accrued, as well as until there is a claimant in existence; there-
fore where the cause of action accrued more than seven years
after the death of a testator, the action against his executor was
held not to'be barred by the act of 1715. Godley v. Taylor, 3
Dev., 178.
18. Where an action was brought upon a covenant for quiet
enjoyment, made by a decedent, and the eviction took place more
than seven years after his death, it vjus hdd that the action was
not barred by the act of 1715. Ibid.
19. If an executor has, after seven years, paid the assets over
to the University, he is not subjected for those assets to the clairii
of a creditor, nor barred by the act of 1715; but the issue of fully
administered must be found for liim, and the creditor must pro-
ceed against the Universitv. Ibid.
894 LIMITATIONS^STATUTE OF— V.
20. The 4th section of the act of 1789, barring creditors of a
decedent who do not bring their suits within two yoafs aftei"
the qnalification of the executor or administrator, is a defence as
well for the next of kin as for the personal representative, and
the latter, in pleading it, need not aver that he has delivered the
assets to the former and taken refunding bonds. Goodman v.
Smith, 4 Dev., 450. (See Rev. Code, ch. (J5, sec. 12.)
21. Advertisements required before the act of 1806, establish-
ing superior courts in each county, to be made at the district
court houses, may be made at the county court houst-s. Ihid.
22. The act of 1715 will not operate as a bar to creditors not
suing within seven years from the death of the debtor, when
there is no personal representative of the deceased durijig that
time. 3IcKnider v. Littlejohn, 1 Ired., {]6.
23. Where an action is brought against an obligor and the
representative of a deceased obligor, and as to the latter the ac-
tion is barred by the act barring claims against deceased persons'
estates, a judgment may be still recovered against the former,
for the act does not extinguish the debt, but only bars the reme-
dy against the person to whom it applies. Bute v. Buie, 2
Ired., 87. _
24. If, in reply to the plea of an executor of the act of 1789,
limiting the time within which actions shall be brought against
executors, &c., the plaintiff wishes to avail himself of the prow'so
in that act, that he was requested by the executor not to sue, he
must state the fact in a special replication. Hubbard v. Marsh,
7 Ired., 204. (See Rev. Code, ch, 65, sec. 14.)
25. Where it appeared that payments were endorsed on the
bond declared on, subsequently to the death of the testator, but
it did not appear by whom, it was held that this did not afford
any evidence that the executor had requested delay. Ibid.
26. A surviving obligor cannot contmue or revive the liability
of the estate of a deceased obligor by partial payments, obtaining
indulgence, or other means, so as to repel the operation of the
act above referred to. Ibid.
27. The 17th section of the 46th ch. of the Rev, Stat., in rela-
tion to the time in which claims must be presented against ad-
ministrators, was intended for the ease and security of the
administrator, and a strict performance is required on his part.
Lee V. Patrick, 9 Ired., 135. (See Rev. Code, ch. 46, sec. 23.)
28. Under the act of 1789, an administrator who has made ad-
vertisement for creditors to present their claims within two
years, but who has not taken refunding bonds from the next of
kin on paying the surplus to them, is not protected against the
action of the creditor brought after such advertisement and pay-
ment over. Beeves v. Bell, 2 Jones, 254. (See Rev. Code, ch.
65, sec. 12.)
29. The statute of 1789, (Rev. Code, ch. 65, sec. 12,) which
LIMITATIONS— STATUTE OF— V--VL 895
bars claims against a decedent's estate not sued for in t vo years,
will not protect the executor or administrator, unless he has paid
over the assets to the persons entitled, and taken refunding
bonds, as well as advertised as required by the statute. Cooper
V. Cherry, 8 Jones, 323.
See (Executors and Administrators— ^xecv/fors de son tort, 2)
(Executors and Administrators— Of their liability to creditors,
&c., 24-30.)
VI. AS TO REAL ESTATE.
1. The statute of limitations as to land cannot have any re-
ference to vacant land. Anonymous, 1 Hay., 4(50, (53^1.)
2. The act of 1791, (Rev. Code, ch. 65, sec. 2,) limiting the
claims of the State, is bottomed upon the presumption of a
former grant, and, therefore, cannot apply to lands admitted on
both sides to be vacant. Ibid.
3. If seven years be completed at a period of time occurring
after arrival at full age, when part of the seven years elapsed
during infancy, the party has three years after his arrival at age
to make his entry or claim, and no more. Pender v. Jo7ies 2
Hay., 294, (479.)
4. Tenant in tail aliens and dies : (The issue in tail will be bar-
red, if he be under none of the disabilities mentioned in the act,
unless he enter or claim within seven years after his right to de-
feat the alienee's title descends to him. JVells v. Newbold, Conf
Rep., 375, (450.)
5. Neither the act of 1800, repealing the law granting escheated
property to the University, nor bringing a suit by the escheator
in 1801, suspended the statute as to the trustees of the Univer-
eity, whose rigiit was sought to be divested by those acts.
University v. Cam/pbell, 1 Murph., 185.
6. Where a husband sold land belonging to his wife, and the
vendee remained in possession seven years, and also three years
after the death of the wife, her heirs, who were under no disa-
bility, were held to be barred. Jones v. Clayton, 2 J\Iurph., G2.
(Overruled, see Fagan v. Wallxer, 5 Ired., 034.)
7. The death of a tenant before seven years will not stop the
running of the statute, provided the possession is continued a
Bufficient time after his death by his heirs, or others claiming
under him. University v. Blount, N. C. Term R. 13, (455.)
8. When the statute begins to run, no subsequent disability
will stop it. Tl>erefore, where an ancestor brought an ejectment
within a year after his title accrued, and continued to prosecute
it until it abated by his death, at which period his heirs at law
were infants, and they brought another ejectment within three
yeors after their arrival at full age, but more than seven years
896 LIMITATIONS— STATUTE OF— VI.
after the title of the ancestor accrued, it ivas lieldihsii they were -
barred. Fearee v. House, N. C. Term Term R. 305. (722.)
7. Where the right to land devolved on an infant, who died
before coming of age, leaving an infant heir who married before
arriving at full age. and she brought an action within three
years after the death of her husband, if, tvas held that she was
within the saving of the statute, and, therefore, not barred by
it. GiUiam v. Jacoclcs, 4 Hawks, 310.
10. The saving clause of the act of 1715 preserves the right
of one of several co-heirs, who is within the proviso, although
the other co-heirs, being under no disability, are barred. Hence
in ejectment on a joint demise by three co-heirs^ of whom two are
barred, and the other not, because under disability, the latter may
recover, while the action fails as to the other two. 31cBee v.
Alexander, 1 Dev. 321.
11. It seems that the proviso in the 6th section of the act of
1715 extended only to " actions and suits," and did not include
a right of entry or claim to land, and as the action of ejectment
depended upon the right of the lessor of the plaintift to enter, it
was not within the proviso. But if it were within the proviso,
yet the pendency of a former action, between the same parties
for the same prennses, would not prevent the operation of the
statute as to that part, for which a verdict passed for the defen-
dant. Morrison v. Connelly, 2 Dev., 233. (See liev. Code, ch.
65, sec. 8.)
12. A power over an estate is regarded as the estate itself;
and a possession adverse to that estate will, under the statute of
limitations, bar the power. PicJcet v. Picket, 3 Dev., 6. _
13. In analogy to this rule, if a purchaser at a sheriff's sale
neglect to take a deed for seven years, a possession with color of
title, adverse to the title conveyed by the sheriff, will bar the
purchaser under the execution. Ihid.
14. Wliere A, tenant in fee, mortgaged his land for a term of
500 years, and conveyed his reversion in trust for himself for
life, and afterwards for his daughters and died; and, during the
continuance of the mortgage term, B got possession of the land
and retained it for more than seven years under color of title;
and afterwards the daughters, the eestdi que trusts of the rever-
sion, obtained the posse'ssion, and the legal representative of the
mortgagee made a release to them of the mortgage term, it was
held thai the daughters, having only an equitable estate in the
reversion, the release could not operate as a legal extinguish-^
ment of the term, but, at most, could only be an assignment of
it; that this term was barred by the statute of limita-
tions, and that, consequently, the daughters could not defend
their possession against an ejectment brought by those claim-
ing under B. Gicyn v. Wdiborn, 1 Dev. and Bat., 313.
15. But though a tenant for years may be barred by the stat-
LIMITATIONS— STATUTE OF— VL 897
lite of limitations, yet the reversioner will not be affected there-
by, nntil the expiration or extinguishment of the terra; there-
fore if, in the case stated above, the representative of the mort-
gagee had received satisfaction from the trustee and surrendered
the term to him, he, or his cestui que trusts holding for him,
would Jiave become entitled to the legal possession of the land,
and might have defended it against the ejectment. Ibid.
16. Although the statute of limitations may have run against
and barred one claiming as heir, who was in existence at the
time, yet it shall not affect a preferable heir who was not then
in existence, for the latter heir does not come in under the first
heir, but above him, and is not, therefore, bound bv his acts.
Caldwell V. Black, 5 Ired., 463.
17. A person suing in ejectment, who was under a disability
wdiieh prevented the statute from running against him, is enti-
tled to recover his share, although there are tenants in common
with him, whose right of action is barred by the statute. Ibid
18. An action of ejectment by husband and wife is not barred
by the statute of liinitations, although the defendant may have
been seven years in possession under color of title, the posses-
sion having commenced during the disability of the w^ife. Ibid.
19. Where a husband and wife sold land l)elonging to the
wafe by a deed purporting to convey a fee simple, she not having
acknowledged the coiiveyance so as to pass her title, and the
bargainee took and held possession under such conveyance, it
ivas held that neither she, nor her heirs, if she died during the
coverture, w-ere barred from asserting her or their title by the
statute of limitations, until after the lapse of seven years from
the death of her husband, the possession of the bargainee not
having become adverse to her, or them, until the death of the
husljand. Fa(/aji v IVall'er, 5 Ired., 634.
20. Where, in an action of ejectment, the defendant relied
upon the statute of limitations, and the evidence was tliat the
defendant and A, under whom he claimed, had been seven years
in actual possession, except for the space of four or five months,
an interval that elapsed between the time when a tenant of A
left the premises, and the time when the defendant entered un-
der his purchaser, it ivas held that the interval between the two
occupations Avas too hmg to found a presumption on of a contin-
ued possessi(Mi, in the aljsence of any intermediate act of 0A\iier-
ship l)y x\, or any one under him. SJiaw v. iShepard, 6 Ired.,
361.
21. In cases of adverse possession of land, the statute of limi-
tions begins to run from the ouster. If the one having the right
be a feme covert, and the seven years liave expired in the life
time of her husband, she has three years, and only three, after the
death of her husband, within which to commence her suit; when
the seven years have not expired in the life time of her husband,
15*
898 LIMITATIONS— STATUTE OF— VI.
the two periods of seven years from the ouster and three yenrs
Ironi the death of her husband are concurrent, until one of them
sliall liave run out, and then the feme in entitled to the other and
longer period to enter or sue. Orumjj v. Tlwrrqjson, 9 Ired., 491.
22. The last jjroviso to the 1st section of the statute of limita-
tions, Eev. Stat., eh. 65, sec. 1, extends to cases where the plain-
tiff has been non-suited, as well as to those in which a verdict
has been found against him. LofKjy. OrrcU, 13 Ired., 123. (See
Kev. Code, <;h. 65, sec. 1.)
23. Where there are several demises of divers persons in the
lirst action of ejectment, it is not necessary that a demise from
each of those persons should be laid in the declaration in the
second action, but it is sufficient tor the second declaration to
be on the single demise from that one or more of the lessors in
the former suit, in whom the title is found to have been ; for the
count in each of the several demises is, in law, the same as a
separate action, and, therefore, the title of each person is saved,
who was a several lessor in such action. Ibid.
24. J3y brmging an action of ejectment, a party then having
the right of entry shall continue to have it, as long as that action
jjends, and afterwards, also, if within one year altcrwards he
will bring another action, and so on from time to time, no matter
who may be at the time the tenant in possession. Ibid.
25. An attempt to procession land under the act Eev. Stat.,
oh. 91, is not embraced in the last proviso to the 1st section of
the statute &f limitations, Rev. Stat., ch. 65, so as to prevent
.actions =of ejectment from being barred, if brought within one
year after a failure to recover in a preceding section. Crump v,
"Thompson, 13 Ired , 150. (See Rev. Code, ch. 88 and ch. 65, sec. 1.)
26. Coverture is not a saving against the operation of the
•statute ol limitations as to land, unless the wife must be joined
with the husband in order to sustain the action ; but where he
may sue alone, or may join his wife with him, at his election, the
.statute bars. Halford v. Tetheroio, 2 Jones, 393.
27. When an eviction from land takes place during coverture,
■the husband may sue alone, or may join his wafe; and he may,
therefore, in such case be barred by the statute. Ibid.
28. The proviso for a new action within a year after a plaintiif
has suffered a nonsuit, as a saving against the statute of limita-
tions, means that there must be some real parties plaintiff and
the same cause of action in both, but there need not be the saipe
defendant in the new as in the former action ; nor does the fact
that the new action contains a second count upon the demise
of othei persons make any difference. Williams v. Council, 4
Jones, 206.
29. The proviso in the statute, as a saving to an infant, is a
personal profedion, and the grantee or releasee of the infant has
no right to its protection. Ihid.
LIiMITATION&-STAT0TE OF-VI.-LIT. BOA^RD, ETC. 899
30. "Where an estate in land was limited to one for life, witli a
remainder to a woman who married during the life estate, it teas
Jueld that she was not barred by seven years of adverse possession
after the termination ot the life estate, when it appeared that
she had brouglit suit within one year after the death of her
husband. McLane v. Moore, 6 Jones, 520.
31. Where the father of a married woman died seized of a
tract of land, it teas held that according to the laws of this State
the daughter became actually seized of the land by descent,
which made her husband, who had children by her, tenant by
the curtesy initiate, -and that he might be barred by an adverse
possession of seven years under color of title. CJdlders v.
Bumgarncr, 8 Jones, 297.
32. The children of a person, entitled to an estate as tenant by
the curtesy, are allowed seven years after the death of their
father before they are barred by the statute of limitations. Ihid.
See (Ejectment — Of the title necessary to support the action.)
(Estoppel — By Deed, 38.) (Grant — How and when grants may
be avoided, li3-21.) (Limitations — When the statute begins to
run, 3-9-1 3-28. ) ( Possession, 22, 23, 29. ) {Power, 4. ) (Widow—
Of her dower, 12.)
LITERARY BOARD.
1. The President and Directors of the Literary Board have no
right to allow, and are not bound to pay, their secretary a per diem
compensation, for a greater number of daj's than theyare actually
in session. Battle v. Literary Board, 6 Ired., 203.
2. When the Board passed a resolution, that their secretary
should be allowed so much |3er diem while he was employed, the
construction is, that he was allowed the per diem pay only while
the Board itself was in session. Ihid.
LUNATICS.
See (Idiots and Lunatics.)
900 MAD DOGS— MAIMING.
MAD DOGS.
1. In an action under the act, Rev. Stat., cli. 70, giving a penalty
of $50 against the owner of a dog, if he have good reason to
believe that he was bitten by a mad dog, and neglect or refuse
to kill him immediately, it is not necessary to prove that the
bitino- dog was in fact mad; it being sufficient, if the owner of
the dog bitten had good reason to believe that the other dog was
mad. Wallace v. Douglass, 10 Ired., 79. (See Rev. Code, ch. 67.)
MAIMING.
1. On an indictment for maiming under the act of 1791. (see
Rev. Code, ch. 34, sec. 14,) the malicious intent to maim or dis-
figure may either be express or implied from circumstances ; and
it is not necessary to prove antecedent grudges, threatenings or
an express design, titate v. Irwin, 1 Hay., 112, (130.)
2. Where an outrageous act, as a maim, is proved, the law
presumes that it Avas done with that disposition of mind which
the law requires to constitute guilt, until the contrary is shown.
State V. Evans, 1 Hay., 281, (325.)
3. In an indictment under the 48th section of the 34th chap-
ter of the Revised Statutes, an intent to disfigure is prima facie
to be inferred from an act which does in fact disfigure, unless
that presumption be repelled by evidence on the part of the ac-
cused of a different intent, or at least of the absence of the in-
tent mentioned in the statute. State v. Girhin, 1 Ired., 121.
(See Rev. Code, ch. 34, sec. 47.)
4. It is not necessar}^, in an indictment under this statute, to
prove malice aforethought, or a preconceived intention to com-
mit the maim. Ibid.
5. To constitute a maim by biting off an ear, it is not neces-
sary that the whole ear shall be bitten off"; it is sufficient if a
part only is taken off, provided it be enough to alter and
impair the natural personal appearance, and, to ordinary obser-
vation, to render the person less comely. Ibid.
6. In an indictment under the statute for maiming by biting
off an ear, it is not necessary to state whether it was the right
or left ear. State v. Green, 7 Ired., 39.
See (Indictment— In wha?t cases an indictment will lie, 28.)
(Indictment — Form and matters relating thereto, 77.) (Iijdict-
inent— Of the trial, verdict and judgment, 8-9.)
MAINTENANCE AND CHAMPEETY, ETC. 901
MAINTENANCE AND CHAMPERTY.
1. Where one purchased land, promising hj a written instru-
ment to pay therefor fifty dollars, if the seller would take that
sum before there should be a decision as to the title of the land,
but agreeing- to pay one hundred dollars if the seller would wait
until lie could get a decision that the title Avas good, it icas held
that the contract was not tainted with maintenance. Nichols v.
Bimtiiiij^ 3 Hawks. 8{j.
See (Bonds — Of the consideration, 11.)
MALICIOUS MISCHIEF.
1. An indictment for malicious mischief will not lie where
the defendant took another's mare from his corn field, in which she
was damaging his growing corn, to a secret part of the county
where he inflicted the wound, to prevent a repetition of the dana-
age; for malicious mischief is confined to those cases where the
act is done in a spirit of wanton malignity, and does not extend to
those where the act is prompted by the sudden resentment of an
injury, which is calculated to excite passion. State v. Lan-
dreth, 2 Car. L. K., 246, (223.)
2. An indictment will be sustained at common law for "un-
lawfully, wickedly, maliciously and mischieyously " setting fire
to, burning and consuming one hundred barrels of tar, belong-
ing to the prosecutor. State v. Simpso7i, 2 Hawks, 4C0.
3. xVn indictment for malicious mischief may conclude at com-
mon law, and in such indictment it is not necessary to charge
malice against the owner of the property injureil. State y.
Scott, 2 Dev. and Bat., 35.
4. jMalicious mischief consists in the wilful destruction of per-
sonal property, from actual ill-will, or resentment, towards its
owner or possessor. State v. Rolnmon, 3 Dey. and Bat., 130.
5. An indictment for malicious mischief will only lie for the
malicious destruction of personal property. Growing corn, ex-
cept in a few cases, is regarded as a part of the realty; there-
fore an indictment, for " unlawfully, wickedly and maliciously "
cutting and destroying a quantity of standing Indian corn, can-
not be supported. State v. Helms, 5 Ired., 364.
6. An indictment for malicious mischief must either expressly
charge malice against the owner, or fully otherwise describe the
offence. Setting forth in the indictment that the act was done
"feloniously, wilfully and maliciously," without averring that it
was done "mischievously," or with malice against the owner, is
not sufficient Statev. Jackson, 12 Ired,, 32y.
902 MALICIOUS MISCHIEF, ETC.
7. A man lias a property in a dog, so that an indictment for ■
malicious mischief in killing one will lie. State v. Latham, 13
Ired., 33.
8. To support an indictment for malicious mischief in killing
a dog, it must be shown that the killing was from malice against
the owner; it not being sufficient that it was the result of pas-
sion excited against tlie animal, by an injury he had done to the
defendant's property. Ibid.
MALICIOUS PROSECUTION.
See (Action on the case — ^JNIalicious prosecution.) (Evidence
-In cases of malicious prosecution and slander.)
MANDAMUS AND QUO WARRANTO;
1. Under the act in the Revised Statutes " concerning writs
of qtio ivarranto and mandamus,'' the defendant, though judg-
ment is given for him, cannot recover his costs against the rela-
tor, where the public only is interested; for the act, though gen-
eral in its terms, nmst be confined to those cases only where the
relator claims some oflice or franchise, and has therefore a per-
sonal interest in the suit. State v. King, 1 Ired., 22. (See Rev.
Code, ch,. 95,^ sees. 2 and 5.)
2. An adjudication of the county court, that a particular per-
son has been duly elected sheriff of the county, and that he ha&
the necessary freehold qualification, is not a judgment in rem,
binding upon all the Avorld, but can at most conclude the par-
ties contesting the election, and cannot, therefore, operate as an
estoppel to an information in the nature of a quo warranto, filed
by the proper officer of the State against the sheriff, alleging the
want of such freehold qualification.. State v. Hardie, 1 Ired., 42.
3. An information in the nature of a quo warranto brought to
try the right to an office or franchise, though in form a criminal
proceeding, is in the nature of a civil remedy, and is not there-
fore within the meaning of tli.e 8th section of the bill of rights,
which declares that " no freeman shall be put to answer any-
criminal charge but by in.dictm.cnt,. presentmeiit ox im;peaplir-
meut." IhkL
:mandamus axd quo warkanto. 903
4. The act in the Revised Statutes, "concerningwritsof (/'?o war-
raido and luaiidamus" is nc^t confined to contests between differ-
ent claimants to offices and franchises; but is intended to regu-
late the mode by whicli all usuipations of offices and franchises
may be examined and determined in courts of justice. Hence,
an information in the nature of a cjuo icarranto maj, with It^ave
of the court, be filed by the attorney general, or solicitors for the
State, in their respective circuits,- against a sheriff, to enquire by
what right he holds his office, and whether any person should
be named relator or iiot in such information, seems to^ be imma-
terial, as the information is tliat of the attorn-ey general or so-
licitor of the State, and not of the relator. Iliid. (See Rbv. Code,
ch. 95.)
5. Whether its appearing affirmatively that an information
was filed with the leave of the court be necessary or not, it will
be sufficient if the proceedings of record show that it has the
sanction of the court. Ibid.
(i. It is no objection to an information that tlie full title of t!ie
'' solicitor for the State" is not given, and that the term "so-
licitor " only is used. But if it Nv^ere an objection, it would be
formal only, and could not av^ail the defenda.nt on a demurrer to
his plea. Ibid.
7. The 63d section of the 31st chapter of the Revised Statutes,
which prescribes the time when writs and other civil process
shall issue and be made returnable, is inapplicable to, and was
not intended to have an}- operation upon, the prerogative writ
of mandamus. Such a writ can ordy issue when a necessity for
it is shown; and from its very nature it should issue, be made
returnable and be returned, according as the necessity that calls
for it may require. Stcde v. Jonts, 1 Ired., 129. (See Rev. Code,
ch. 31, sec. 50.)
'S. No general rules of practice in relation to the issuing and
return of writs of innndainus have yet been prescriljcd in tliis
State, and it is, therefore, in each case the province of the court,
by which the writ niay be a\\'arded, to fix the day on which it
should be made returnable. Ihid.
9. Tlie case set forth in the writ of mandanuis mnst sJioiv that
there is no other specific legal remedy; because the court will
not, ordinarily at least, interfere by mandamus where there is
another specific legal remedy. But it is not proper, much less
necessary, that the writ should declare that there is no other
remed}' for the mischief which it connnands to be removed. Ihid.
10. The writ of mandainus should be directed to all the per-
sons, wdiose duty it is to perform the act recjuired, though some
of them may be applicants for the writ. And where three of
seven commissioners filed a petition for a mandamu'i to compel
the other four in concurrence with them to perform a specific
duty, and an alternative mandamus was issued, directed to the
904 MANDAMUS AND QUO WARRANTO
four only, wliicli was returned with an admission of service by
the three petioners, and an expression of their readiness to per-
form the duty, whereupon a peremptory ;)icwH/«)/i?/.s was ordered,
it ivas held that the order lor the peremptory mandamus was
against all, and that the proceedings were sutHcient. Ibid.
11. When an alternative mandamus is issued, and no answer,
or return of the cause is made, the court may be moved for an,
attachment against the persons to whom it has been directed;
and in such a motion the attachment ought to be refused, un-
less there has been a personal service of the writ, or such a ser-
vice as the court, by special order under the circumstances of
the case, may direct. But the court, instead of proceeding by
attachment for contempt because cause is not shown, may di-
rect a peremptory mandamus to issue, simply regarding the al-
ternative mandamus as in the nature of a rule to show cause why
an absolute mccndumiis should not issue; and to justify this course,
personal service of the rule, or the writ in nature of a rule, is not
necessary; but service by leaving a copy at the dwelling house
is sufficient, if tlie court deem it reasonable ; and of this the court
which issues the rule, or writ in nature of a rule, is the exclusive
judge, and its judgment upon that matter cannot be revised up-
on appeal. Ibid.
12. Though a peremptory mandamus implies that the party
has been fully heard, and, therefore, that he can allege no rea-
son for not obeying it, yet an exception is of necessity implied,
that such obedience is not forbidden by a new law passed after
the writ was awarded. State v. Jones, 1 Ired., 414.
13. A writ of 7uaJ?<iam?;.§ will not be gTanted to a relator for
his relief, except where he has a .specific le(/al right, and has no
other specific remedy adequate to enforce it. State v. Justices of
Moore County, 2 Ired., 430.
14. The justices of the county court, having* a discretion to a
certain extent in granting licenses to retail, a mandamus will not
lie to compel them to grant a license to any particular person,
though he may have been impro]>erly refused a license. Attor-
ney General v. J> notices of Guilford, 5 Ired., 315.
15. But if justices, fully informed tliat they have discretion to
regulate a branch of the pu1)lic police (as in tlie case of granting
licenses to retailers), perversely abuse their discretion, by obsti-
nately resolving not to exercise it at al], or by exercising it in a
way purposely to defeat the legislative intention, or to oj^press
an individual : such an intentional, and therefore corrupt, viola-
tion of duty and law must be answered for on an indictment.
Ibid.
16. x\n information filed by the attorney -general for the pur-
pose of having the charter of an incorporation declared to be for-
feited, though it need not be expressed in technical language,
must set out the substance of a good cause of forfeiture in
:maxdamus and quo waeeanto 905
its essential circumstances of time, place and overt acts. Attor-
ney Goi'-'ral V. Petersburg and RoanoJce Railroad Company, 6
Ired., 456.
17. When the legislature required "the grounds" to be set
forth, on ^vhich the" forfeiture is alleged to be inciu-red, nothing
less could be meant than that the information, like an indict-
ment or declaration, should state with certainty to a common
intent those facts and circumstances, which constitute the of-
fence in its substance, whether of misfeasance or nonfeasance : so
that, on its face, if true, it may be seen that there is a specific
ground in fact, and not by conjectural inference, on which a for-
feiture ought to be adjudged. Ihid.
18. When a charter expressly imposes a duty, which the cor-
poration is to perform, not merely to the citizen, but towards the
sovereign itself, although it may not declare that non-perform-
ance shall work a forfeiture, yet it must be taken to have been
required by the State as a material stipulation, for the non-per-
formance of which by the corporation the State may put an end
to the charter. But if the sovereign (which with us is the leg-
islature) with the distinct knowledge of a breach of duty by the
corporation, a knowledge declared by the legislature, or so clear-
ly to be inferred from its own archives that the contrary cannot
be true, thinks proper by an act to remit the penalty, or to con-
tinue the corporate existence, or to deal with the corporation as
lawfully and rightfully existing, notwithstanding such known
default, such conduct must be taken, as in other cases of breach-
es of condition, to be intended as a declaration, that the forfeit-
ure is not insisted on, and, therefore, as a Avaiver of previous de-
faults. Ibid.
19. Where, by act of assembly, certain persons were appointed
commissioners "to select and determine upon a site for a per-
manent seat of justice for S. county, who shall locate the same
as near the centre of the said county as a suitable location can
be obtained, taking into consideration, both the extent of the
tei-ritory and population," and the commissioners made selection,
upon an application for a prohibition and mandaians on the gen-
eral ground than the site was not in the centre of the county,
it teas held that though, had the commissioners neglected to dis-
(>-harge the duty at all, the court might by mandanms have
enforced its performance, yet, as the commissioners had acted and
exercised their judgment in the selection, and the trust evidently
requiring and the act conferring a discretion, the court could not
interfere by mandamus to control the exercise of that discretion.
State V. Bonner, Busb., 257.
20. On a petition for a m,andamiis, the writ of alternative
mandamus h always the first jiroce.ss, as distinguished from a rule.
State V. Justices (if Anson, Busb., 302.
21. The return of the delendants to an alternative mandamus
906 MANDAIMUS AND QUO WARRANTO.
will be taken as true, unless its falsity is alleged and shown hy
the petitioner. Tucker v. Justices of Iredell^ 1 Jones, 451.
22. Where the return of the defendants admits a material
allegation of the petitioner, but avers new matter in avoidance,
the issue, to avail the petitioner in falsifying the return, should
be taken on the new matter, and not on the admitted fact ; for as
to that, the issue will be treated as immaterial. Ibid.
23. Where a mandamus is })rayed for to compel the justices of
a county to pay tor the building of a bridge, and a verdict is
rendered by a jury, upon an issue submitted to them, that the
bridge was not built according to the contract, the petitioner
has no right to recover, in this proceeding, the value of the
bridge, during the time it had been used by the public. Ibid.
24. A contractor to build a court house, who has not done the
work according to the contract, is not entitled to a mandamus to
compel the justices of the county employing him, to pay the
sum agreed on; especially after they had already paid him
more than his work and materials were worth. Dumeron v.
Justices of Ckaveland, 1 Jones, 484.
25. The defense to an information in the nature of a quo tvar-
ranto ought to be made by way of a plea, and not that of an
answer. Burton v. Palton, 2 Jones 124.
2(). An information in the natiare of a quo ivarranto may be
filed against public ofhcers after the expii-ation of their office,
when their conviction may be necessary to invalidate their acts,
which are of public concern. Therefore, it was held that such a
proceeding against commissioners, appointed by an act of assem-
bly to purchase a town site and to lay off and sell lots, is not too
late after they have professed to act, amd have professed to per-
form every particular duty prescribed by the act. Ibid.
27. Persons, who have been regarded as public officers for a
greater part of the time during which the office existed, and
A\diose acts are recogized by other public functionaries, must be
taken to be officers de facto, and their acts will be regarded as
valid, unless declared otherwise by some competent tribunal in
a proceeding directly against them. Ibid.
28. When a mandamus issues to the justices of a county, com-
manding them to do a thing in their public capacity, their re-
turn to it must be made by them as a body. McCoy v. Justices
of Harnett, 4 Jones. 180.
29. Where an alterative mandarins was directed to the justi-
ces of a county, and a part of them made a return of one im-
port, and another part made a return of a difierent import, no
meeting of the whole body having been held to ascertain the
voice of the majority, it was held that there was no legal return,
and that all the proceedings in the case, predicated on a return^
were erroneous. Ibid.
30. A petition for a mandamus^ alleging a contract between
MAKDAMUS AND QUO WAKKANTO. 907
the petitioner and the justices of a county, by -which he was to
be paid a certain sum for building a court house, and a certain
other sum for building a jail, " in monthly instalments for lum-
ber and work," and praying for a writ of niandanuis to compel
the payment of what is due," without averring that any partic-
ular sum is due, is defective. And so is^a Avrit of alternative man-
damus, commanding the defendants to provide the means, and
pay " whatever sum is now due, " without an allegation that any
particular sum is due. 3IcCoy v. Justices of Harnett, 5 Jones,
265.
31. Where it appears from a contract for erecting a public
building, sought to be enforced by a mandamus, that the work
was to be done under the direction of a superintendent, who
was to make monthly estimates of Avork done and materials fur-
nished, and to certify the same, and that the contractor was to
be paid monthly on the production of such certificates, a peti-
tion for a mandamus, and a writ of mandamus commanding pay-
ment to be made, without averring the existence of such certi-
ficates, or accounting for their non-production, is defective.
Ibid.
32. Where a petition for a mandamus, and the writ issued in
pursuance thereof, are defective in substance, they will be quash-
ed on motion, at the cost of the petitioners. Ihid.
33. ^^'here to a writ of alternative mandamus the defendant
exhibited a bill in equity, alleging an equitable defence to the
demands of the plaintiff, and praying for an injunction to re-
strain him from prosecuting the writ, and asked that the bill
might be received as " a return " to the writ, it loas held that it
was proper in the court to refuse the injunction, and to order
the defendant to make a return to the writ of mandamus.
Neuse Biver Nafiqation Com'pavy v. Coiiunissioners of Ncwbern,
6 Jones, 204.
34. The proper order in a mandamus, seeking payment from
the justices of the county court for work done for the county,
under a contract which they were empowei-ed to make,
and which was made by commissioners appointed by them, is
that they i^ay, and not that they be required to lay taxes, &c.
McCoy V. J/i-stires of Harnett, 6 Jones, 488.
35. Where one of the stipulations of a contract for making a
public building was, that the work was to be done under the
direction of a superintendent, and payments were to be made
monthly on the production of his estimates and certificates; it
was held unnecessary, after the work was completed, approved
and accepted, to do more than set forth in a petition for a 7nan-
dauvis, that the worlc had been done under such superintendent,
and his estimates, etc., had been presented, but were disregarded
by the justices appointing him, and payment refused on other
grounds. lUd.
908 MANDAMUS AND QUO WAEPtANTO.
36. The superior court of any county may issue a writ of
mandamus to the Governor of the State, commanding him to do
an act which is merely ministerial. Cotton v. JElIis, 7 Jones, 545
37. Where an act of assembly establishing a new county ap-
pointed certain persons as commissioners to ascertain a site and
purchase a tract of land for the county seat, and required the
justices of the county thereupon to appoint commissioners to lay
off lots in the town and sell them, it was held not to be a suffi-
cient return to an alternative martdamus to the justices, for them
to allege that the locating commissioners had been prompted by
improper motives in the discharge of their duties. Lander v.
Justices of Ashe, 8 Jones, 174.
38. Where the locating commissioners, under the act above
referred to, were directed to purchase a tract of land, take a deed
for it and file it in the office of the clerk of the county court,
whereupon the justices of the county were to do certain acts, it
was held that the justices were not entitled to any other notice
that the locating commissioners had acted, than the filing of
such deed, especially, as the act did not expressly direct that
any notice should be given them. Ibid.
39. The proper Avay for the justices of a county to make a
return to a mandamus is for them to convene, and, a majority
being present, to agree upon the facts they mean to rely upon
by way of defence, and then appoint some one of their body to
make affidavit, and to do all the other things required by the
proceeding. Ibid.
40. A contract fbr erecting a public building, made with a
committee appointed by the justices of a county, if performed
according to its terms by the contract.or, will bind the justices,
and they may be compelled, by a peremptory mandamus, to pay
the stipulated price, although early in the progress of the work
they had dismissed the committee, and endeavored to rescind
the order appointing it, and had given notice to the contractor
not to proceed. McCoy v. Justices of Harnett, 8 Jones, 272.
41. Where a person contracting to erect a public building,
after the dismission of the committee through whom the con-
tract was made, and a rescission of the order appointing it, and
a notice by the justices not to go on with the building, still con-
tinued to act under such committee, and by its directions made
material departures from the specifications in the contract, it was
held that, though he completed the building within the specified
time, he was not entitled to a peremptory mandawMS to compel
the payment of the price. Ihid.
42. An information in the nature of a writ of quo warranto
against a corporation for the purpose of having its privileges de-
clared forfeited, because of neglect and abuse in the exercise of
them, must be filed in the name of the attorney general of the
MANDAMUS AND QUO WAERANTO, ETC. 909
State, and caiuiot be iiistitiitecl in the name of one of the soHcitors.
Houston r. Neiise River Navigation Com'jiany, 8 Jones, 47().
See (Clerks and Clerks and ^Masters — Of their election or ap-
pointment, 3-4.) Corporations — Of corporations generally, 1.)
(Costs — ^^^hen neither party recovers costs, 7-11.) (Costs — In
civil proceedings, when the plaintiff pays costs, 11.) (Forcible
Entry and Detainer, 16.)
^lANSLAUGIiTEPu
See (Homicide.)
MARRIAGE.
See (Assumpsit — Defence to the action.) (Husband and Wife
-^Marriage.) (Indictment — When an indictment will lie, 59.)
MASTER AND SERVANT.
1. A master is not liable for an actual trespass, which his ser-
vant may commit without his previous command or subsequent
assent ; but he is liable in an action on the case for the tortious
acts, negligence or unskilfuUness of a servant, acting in the pros-
ecution of his service, or in the exercise of the authority he has
given him, though not under his innnediate direction. Harris
V. Mabry, 1 Ired., 240.
2. Where the case was for wrougfldly and negligently permit-
ting the plaintiff's slave to pass in the defendant's stage coach,
without the permission of the plaintiff, whereby the slave
escaped and was lost for some time to the plaintiff", and she was
jmt to great expense, &c., and where the evidence was that the
defendant's drivers and stage agents were guilty of gross negligence,
in taking the slave beyond a certain town, where her pretended
pass was at an end, and permitting her to travel in defendant's
stages to another state, whereby the slave was lost to the plaintiff it
910 MASTER AND SEEVANT^MERGER, ETC.
was held that the defendant was liable for the injury, and that
the plaintiff was entitled to recover all such damages as were
the consequence of the acts of the defendant's servants, while in
his service. Ibid.
3. The owner of a slave, who is hired out, is not answerable
to a physician for medicine or medical services, rendered to the
slave at the request of the hirer, and without the request or
knowledge of the owner. Haywood v. Long, 5 Ired., 438.
4. What may be the right or liabilities, in such a case, as
between the owner and the hirer, quaere. Ibid.
5. The hirer of a slave, and not the general owner, is liable in
an action for medicine and medical services rendered the slave
while the term of hiring continued, the services and medicine
not being rendered at the request of the owner, but at the request
of the hirer; and a particular custom in a county, that the gen-
eral owner shall pay these expenses, does not vary the law.
Jones V. Allen, 5 Ired., 473.
fi. A master is not liable for the willful trespass of his servant.
Wesson v. Seaboard and Roanoke Railroad Company, 4 Jones, 379.
7. A master is not liable in damages to one servant for inju-
ries caused by the negligence of a fellow-servant, engaged in
the same employment^ provided the master has taken reasonable
care to associate with the .person injured, servants of ordinary
skill and care ; and if the person injured be a slave, his owner
can stand in no better situation than a free servant. Ponton v,
Wilmingion and WeUon Railroad Comjjany, 6 Jones, 245.
See (Slaves- — Of a master's liability for the contracts, or acts,
of his slaves.)
MERGER.
1. Estates do not merge wheu they are not ejusdem generis;
therefore, where a father had a life estate in a slave, remainder
to all his daughters, a gift by him of the slave to the husband
of one of the daughters will not merge the life estate in the
remainder, because that remainder is in all the daughters. Moye
V. — , 2 Hay., 186, (387.)
MILITIA.
1. Where a man, who is liable to militia duty, is arrested on
a civil process while attending a militia muster, in violation
MILITIA— .AIILLS— I.
911
•of the act of assembly, he may plead the same in abatement.
Murphy V. 3IcCnmbs,\l Ired., 274.
2. The only effect of the act of 1858, ch. 22, repealing so much
of sec. 9, ch. 70 of the Eev. Code, as relates to the appointment
and salary of the adjutant general, is to take from the governor
the power to fill future vacancies in that office, and to revest it
in the legislature, and also to leave the salary to be paid semi-
annually, as provided by the Rev. Code, ch. 102, sec. 2. Cotton
V. EUis^ 7 Jones, 5-A5.
MILLS.
t. Action at comracm law for damages
caused by a mill.
tl. Proceedings for damages by petition
under the act of 1809.
ill. Proceedings to condemn land for the
erection of a mill.
IV. Liability of mill owners for bridges
attached to their dams,
V. Indictment against mill owners for
keeping false toll dishes.
I. ACTION AT COMMON LAW FOR DAMAGES CAUSED BY A MILL.
1. Case for nuisance in erecting a mill Avill lie for every fresh
continuance of the dam and pond after action brought ; though
heavy damages are not usual in the first action, they may be in-
creased in a second, to compel an abatement of tlie nuisance,
■ V. Beherrij, 1 Hay., 248, (287.) S. P., Caruthcrsv. Tilnian,
Ibid, 501, (5713.) (For the statutory remedy by petition. See
Kev, Code, ch. 71.)
2. A license to overflow a man's land by a mill pond is not
good if verbally given, because land cannot be charged by any
matter of less solemnity than a deed. Ibid.
3. Where a second action isbrought for overflowing plaintiff's
land by a mill, the damages should be assessed for the time be-
tween the beginning of the first and the second action ; and as
the action may be repeated for every continuance of the nuisance,
the damages should be light, Bradley v. Amis, 2 Hay., 399,
(^01-) ...
4. In action for overflowing the plaintiff's land, lie need not
prove his title, though it be set forth in the declaration, for pos-
session alone is suffici-ent to support this action against a wrongs
doer. Yearguin v, Johnston, Tay., 80, (56,)
912 MILLS— 11.
II. PROCEEDINGS FOR DAMAGES BY PETITION UNDER THE ACT OF 1809'.
1. LT^pon an appeal from the county court in the case of a pe-
tition for overflowing land by the erection of a mill, the jury in
the superior court must meet on the premises. Andrews v.
Johnson, 1 Car. L. R., 272, (26.) (Altered; seeKev. Code, ch. 71,
sec. 10.)
2. Whenever any person has sustained an injury to his land
by the erection of a mill by another, it is necessary for him first
to file a petition in the county court, according to the act of
1809. Mumford v. Terry, 2 Car. L. E., 425, (308.) (See Rev.
Code, ch. 71, sec. 8 and f'oUowing.)
3. In a petition under the act of 1809 to recover damages for
the overflowing of the plaintiff's land, if the defendant die it
cannot be revived by a sci. fa. against the heirs, they not being
liable for the tort of their ancestor. Fellow v. Fulgham, 3 iMurph.,
254. ( (Mfcre how this is affected by ch. 1, sec. 1, of the Rev.
Code, as to a1)atement of suits, &c.)
4. Though the statute has given a new remedy by petition for
injuries from the overflowing of mill ponds, yet the nature of
the injury is still the same. It is a tort in which all, or any
one or more, are liable for the whole injury, and it, tlierefore,
survives against tlie survivors. IVilson v. Myers, 4 Ilawks, 73.
5. A conveyance made to defeat, hinder or delay a party iiv-
jured by the erection of a mill, in the recovery of his damages,
is fraudulent and void as to such party, and tlie owner or pro-
prietor of the mill, notwithstandiiTg such conveyance, continues
still liable for tlie damages. Pureell v. McCaUum, 1 Dev. and
Bat., 221.
6. Upon a petition filed under the act of 1809, to recover
damages caused by the erection of a mill, damages may beUiS-
sessed for an injury to the health of the plaintiff and his family,
as well as for overflowing his land. Gillet v. Jones, 1 Dev. and
Bat., 339.
7. The main object of the act of 1809 was to restrain a malicious
exercise of the common law right to sue for a nuisance, in frivo-
lous cases. It does not create any new right to damages, nor
abolish any pre-existing one. It only restricts the party, to a
certain extent, to a particular mode of recovery. Its policy
requires its application to all injuries, of whatever character,
arising from the erection of a mill. Ihid.
8. Upon a verdict under the act of 1809, where the annual
damage is under twenty dollars, the proper judgment is for the
whole damages, with a ces.w/ cxecntio for those whicli are not
payable; and this judgment should be peremptory, and not con-
ditional. Ibkl.
9. If the damages be increased, the plaintiff will not be
estopped by the judgment. And if the defendant do not keep
MILLS— 11. 913
Tip the mill, the judgment may be set aside for the residue of
the damages by an audita querela., or other remedy of a like
nature. Ihicl.
10. \Yhere the suit upon the petition ends within five years,
and the plaintiff lias a verdict for more than twenty dollars
annual damages, he may elect to take judgment for five years
damages, or only for the years passed. And if he elect to take
a judgment for five years annual damages, he will be concluded
for that period, and not be at liberty to use his common law
remedy. Ibid.
11. It would be error as against the plaintiff, and perhaps also
as against the defendant, to enter a judgment for the five years
annual damages, where it exceeds twenty dollars, without the
election of the plaintiff", appearing upon the record, iniless the
suit has been protracted beyond the five years. 1 hid.
12. If, at the time of the trial of the petition for damages, five
years have elapsed since the filing of the petition, a peremptory
j'udgment for the five years is proper, whether such annual dam-
age be above or below twenty dollars. I bid.
13. One, whose land is overflowed by a mill pond, has a right
to recover for the damages done him, notwithstanding his ances-
tor consented by parol, to the erection of the dam ; for if it were
the grant of an incorporeal hereditament, it was void for want
of a deed; if a mere authority or license, it could be revoked, and
ceased with the Hfe of the grantor. Bridges v. Purcell, 1 Dev. and
Bat., 4! 1 2.
14. Where the erection of a mill on a stream causes the water
to overflow'the land or mill of a proprietor above only Avhenthe
■stream is swollen, that will not excuse the party from damages
altogether, but will only diminish the amount of them. Fugh
v. jhiceler, 2 Dev. and iBat., 50.
J. 5. If, on a petition for damages under the act of 1809, the
jury return a verdict assessing damages for more than one year
before the filing of the petition, the court may correct it by
giving a judgment for the damages of only one year previous.
Ibid.
IG. In assessing damages under the act, the jury are not bound
to give the damages at an average for the five years, but may
•assess difierent sums for different periods during that time.
Ibid ,
17. Where a petition under the act alleged "that by the erec-
tion of the mill, 30 or 40 acres of his land were overflowed, and
that by the said overflowing, the healthfulness of his plantation,
on which he resides, is greatly deteriorated, the overflowing ex-
tending to within 300 yards of his dwelling house," the plaintiff
is only entitled to recover damages for the injury done by inun-
dating his own lands, not for an injury to the health of his fam-
ily by other parts of the mill pond. The plaintiff being bound
16*
9U MILLS— II.
to state in his petition in what respect he was injured, and his
proofs cannot go beyond his allegations. Bridgers v. Purcell, 1
Ired., 232.
18. On an appeal from the judgment on the verdict of a jury
in the county court, assessing damages for the erection of a mill,
the superior court has a right to permit the sheriif to amend his
return of the verdict of the jury, so as to set forth Ihat they were
sworn on the premises. Harper v. 3IiUer, 4 Ired., 34.
19. In the case of a petition for damages caused by the erec-
tion of a mill, under the act, when there has been a verdict and
judgment in the county court, the superior court has no right to
dismiss the appeal of either party therefrom, because of irregu-
larity in the proceedings previous to- the verdict, or in the ver-
dict itself; but the trial must be had in the superior court, as
prescribed in the act. Ibid. (See Rev. Code, ch. 71, sec. 16.)
20. None but a person whose land is overflowed or injured by
a mill pond, can have the remedy to recover damages by peti-
tion, for the injury sustained by the erection of the mill, as pro-
vided in the statute concerning mills. Waddi/ v. Johnson, 5
Ired., 333.
21. "When the land is so overflowed or injured, the owner may
recover full compensation for all the injury he has sustained
thereby, whether it be more or less direct, whether it affect his
dominion in the land by taking away its use, or impair the value
of that dominion by rendering the land unfit, or less fit, for a
place of residence, or whether the injury, reaching beyond its
immediate mischief, extends also to the person, or the personal
property of the petitioner. Ibid.
22. One who complains of a nuisance to his land by the erec-
tion of a mill dam. is not obliged to wait until the expiration of
a year before he files his petition to recover damages under the
act, and when it is filed within a year, the damages are neces-
sarily confined to the time the injury has existed. Cochran v.
Wood, 6 Ired., 194.
23. An executor has a right to a remedy by petition, under
the act, to recover damages for the overflowing by a mill pond
of his testator's land in the life time of such testator. Howcott v.
Warren, 7 Ired., 20.
24. A remedy by petition under the act to recover damages
for overflowing land by a mill pond, may be had against the ex-
ecutors of the person who committed the injury. Howcott v.
CqffiehlJ Ired., 24.
25. Notwitlistanding the act of 1844, ch. 13, relating to jury
trials in the counties of Henderson, &c., a person cannot main-
tain an action on the case for the overflowing of his land by the
erection of a dam for a puljlic grist mill in the county of Hen-
derson, without having first proceeded by petition, either in the
county or superior court of Henderson, according to the provis-
MILLS— 11 915
ions of the act of 1809. King v. Shuford, 10 Ired., 100. S. P.
Pace V. Freeman, 10 Ired., 103.
26. Possession alone will maintain an action on the case at
common law for overflowing one's land, and therefore, is suffi-
cient to support a petition under the act in relation to mills.
Pace V. Freeman, 10 Ired., 103.
27. The owner of land injured by the erection of a mill, who
has proceeded by petition, under which the annual damage as-
sessed was as high as twenty dollars, and who has taken judg-
ment for and received the damage for the whole five years, can-
not maintain an action on the case, brought after the expiration
of the five years, without having again ascertained the annual
damage by proceeding under a second petition. Gilliam v. Gan-
aday, 11 Ired., 106.
28. In a proceeding under the act, to recover damages for
overflowing land by a mill pond, it is not necessary that a copy
of the petition should be served on the defendant. It is sufficient
for the plaintiff to give the defendant ten days notice in writing,
of his intention to file the petition. Gox v. Puis, 12 Ired., 139.
29. In a proceeding to recover damages for ponding water by
a mill dam, under tlie act, the verdict of the jury and the judg-
ment of the court thereon are conclusive as to the assessment of
damages, up to the time when such judgment was rendered.
Peaity v. Gonner, 12 Ired., 341.
30. An application for relief from damages, assessed for a pe-
riod subsequent to the time of the judgment, can only be heard
when the dam is taken away or lowered. The washing out of
the channel, and other causes of a similar kijid, furnish no rea-
son tor abating the damages. Ibid.
31. A dam erected below a steam mill, not for the purpose of
<lriving the machinery of the mill, but for the purpose of float-
ing timber to the mill, by which water is ponded back upon the
land of another, does not come within the meaning of the act
of 1809, and an action on the case will lie at once for the injury.
Bryan v. Purnett, 2 Jones, 305.
32. It is not necessary that the water of a mill-pond should
actually ovei'flow the land of a person, to entitle him to recover
damages under the act. If the dam throws back the water so
as to iiijure the land by preventing it from being drained, the
owner will be entitled to damages. Johnston v. Poane, 3 Jones,
523.
33. Upon an enquiry as to the damages arising from the pond-
ing of water upon land, the petitioner has a right to have the
question submitted to the jury, whether the overflowing com-
])lained of was, during the time alleged, injurious; and any for-
mer benefits the land may have received from such overflowing,
has nothing to do with the question. Kimcl v. Kimel^ 4 Jones,
121,
916 MILLS— II-III-IV.
34. If water be ponded back upon the land of another by the
erection of a mill-dam, he is entitled, in the remedy by petition,
to recover, at least, nominoi damages, whether there be any sub-
stantial injury or not. Wright v. Stotoe, 4 Jones, 516.
35. In a petition for damages caused by the erection of a mill
dam, where in the county court the plaintifi"'s right to relief is
denied by plea or answer, the proper course is to empannel a
jury to try the truth of the allegations made in bar of such
right, and if it be found in favor of the plaintifi", a jury must then
be ordered to go on the Y)remises to assess the damages, but in
all cases where there is an appeal to the superior court, tlip facts
are to be ascertained by a jury at bar, but in that court the alle-
gations in bar of relief must be submitted to be first passed upon
by the jury, before they proceed to ascertain the amount of dam-
ages. Jones V. Clarke, 7 Jones, 418.
36. In a petition for damages caused by the erection of a mill
dam, the fact that the plaintiff and those under whom he claim-
ed had made no complaint for twelve years, is neither a bar to
the action, nor cause for the mitigation of damages. Griffin v.
Foster, 8 Jones, 337.
See (Evidence — Proceedings in other suits, when and how far
evidence, 37.)
ni. PROCEEDINGS TO CONDEMN LAND FOR THE ERECTION OF A MILL.
1. In condemning an acre of land for the purpose of erecting'
a mill, the court is forbidden to confirm a rej^ort of commission-
ers if it take away "houses," &c; and by necessary implication,
the commissioners are forbidden to include them in their survey.
They are, therefore, not authorized to include in their valuation
any houses found on the condemned acre, even though erected
there by the petitioner bef re the proceedings were commenced.
The valuation must be confined to the naked land. Burgess v,
Clark, 13 Ired., 109. (See Rev. Code, ch. 71, sec. 2.)
See (Costs — In civil proceedings, when plaintiff pays costs, 6.)
IV. LIABILITY OP MILL OWNERS FOR BRIDGES ATTACHED TO THEIR DAMS,
1. The penalty imposed by the act, Eev. Stat, ch. 104, sec,
25, on the owner of a water mill, for not keeping a bridge in re-
pair, only applies to such bridges as constitute a part of the pub-
lic road whidi runs over the dam itself, but not to a bridge
which is erected over a mill race on a road that crosses sucii
race near the mill, but does not run over the dam. Hall v. Mor-
row, 2 Jones, 465. (See Rev. Code, ch. 101, sec. 24 and 25.)
MILLS— V—]\IISMARKIXG CATTLE, HOGS, ETC. 917
V. INDICT3IENT AGAINST MILL OWNERS FOR KEEPING FALSE TOLL DISHES.
1. In an indictment under the Eev. Code, ch. 71, sec. 6 and 7
against a mill owner, wherein it was charged that he ''did keep
in his mill a false toll dish, for the purpose of exacting more toll
than by law he of right ought to do," and that "by means of said
false toll dish he exacted unlawful toll," against the statute, &c.,
it was held that ihQ allegations were sufficiently supported by
proving that the mill owner kept a measure containing one sev-
enth, and another one sixth of a half bushel, with which he
openly took toll of all customers, that the word "false toll dish,"
as used in the statute, meant a toll dish measuring more than
one eighth of a half bushel. State v. Perry, 5 Jones, 252.
2. In an indictment under the act for keeping a false toll dish,
it is unnecessary to aver the capacity of the toll dish charged to
be a false one. Ibid.
3. In such an indictment, it was also held that it ought to be
averred in the bill that the mill was one used for the grinding
of wheat and corn, but that when it was charged that it was a
mill where a false toll dish was used to exact more toll than was
lawful, contrary to the statute, it did appear, with sufficient cer-
tainty, that it was a mill for grinding corn and wheat. Ihid.
4. An indictment under the act cannot b^ susta^ined by proof
that the mill owner took one sixth part of each half bushel of
corn with a half gallon toll dish — because that by dry measure
is the measure required by the act. State v. Nixon, 5 Jones,
257.
MISMARKING CATTLE, HOGS, &C.
See (Indictment — When an indictment will lie, 45-46-136.;
(Cattle and other Live Stock, 3.)
MONEY.
1. Whoever has the possession of money is presumed to be the
owner of it. Qidnton v. Courtney, 1 Hay., 40, (51,) S. P. Clary
V. Allison, Ibid, 111, (128.
2. For money pui-poses, bank notes are to be considered as
many; as for instance in an action for money had and received
918 MONEY— MORTGAGE.
where the plaintiff had received counterfeit bank notes in ex-
cliange for a good one, and which he may, therefore, treat as a
nullity. Anderson v. Hawkins, 3 Hawks, 5B8.
See (Limitations — When the Statute will or will not bar, 72.)
(Indictment — In what cases an indictment will lie, 41.)
MORTGAGE.
1. A mortgage not registered in time, is ineffectual against
purchasers subsequent to the mortgage, whose conveyances are
registered before the mortgage. Cowan v. Green, 2 Hawks, 384.
S. F. Davidson V. Beard, Ibid, 520. Tate v. Brittain,^ Hawks, 55.
2. A mortgage is good only from the time of its registration.
Ibid. (See Rev. Code, ch. 37, sees. 22 and 23, as to the present
law on the subject.)
3. The act of 1789, passed for the more easy redemption of
mortgages, applies in those actions of ejectment only, in which
the parties stand in their original simple state of mortgagor and
mortgagee. Devereux v. Ma.rsoratti, 3 Hawks, 338. (The act of
1789 was re-enacted in the Revised Statutes of 1836, ch. 37, sec.
28, but seems to have been omitted in the Revised Code. See
ch. 37, and index title Mortgage.)
4. Where a mortgagee obtained judgment and execution for
his mortgage debt, and under the act of 1812 sold the e<pity of
redemption in the mortgaged premises, it was held that in a suit
by the mortgagor against the purchaser at such sale, that he had
no right of action against him at law (whatever might be the
equitable rights of either) for the amount of his bid, on the
ground of its being a bid for so much beyond the amount due
on the mortgage, because the contract of sale was made with
the sheriff, and he was not such an agent of the defendant in
the execution, as to enable the latter to recover in his own name,,
from the purchaser, the price of land sold by the former. Coxc
v. CamjD, 2 Dev., 502.
5. Where the mortgagor and mortgagx^e join in a bargain
and sale before the estate of the latter has become absolute, the
bargainee is in under the mortgagor. Wall v. fVhite 3 Dev., 105.
6. Where the mortgage debt is paid within the period limited
by the deed, the estate of the mortgagee is thereby divested^
and he has nothing but a possession, which is defeated by the
entry of the mortgagor or his vendee ; and in such case upon the
entry of the vendee of the mortgagor and mortgagee, the bar-
gain and sale becomes the deed of the mortgagor and the con-
firmation of the mortgagee. Ibid.
I\IOETGAGE. 919
7. A deed executed to secure recited debts is a mortgage, al-
though it contains neither a jyroviso for redemption nor a decla-
ration of its trusts, and the fact of the trust of the surplus be-
ing declared in a separate and unregistered paper will not make
it void for the recited debts. SJanner v. Cox, 4 Dev., 59.
8. The possession of a mortgagor, or of those claiming under
him is the possession of the mortgagee ; and if the mortgagor
be ousted by a stranger, and regain the possession, he regains it
still as the tenant of the mortgagee. Gioyn v. WeUhorn, 1 Dev.
and Bat, 313.
9. An instrument in the form of a bill of sale from A to B
for a female slave, with this proviso, " provided if the said A,
should well and truly pay unto the said B, the above sum herein
mentioned, before his death, then the above obligation to be
void — only, the increase, if any, to remain the property of B" is
a mortgage to secure the re-payment of the sum advanced and
mentioned in the instrument; and if the mortgagor remain in
the possession of the slave and her increase during life, and die,
leaving the money unpaid, the mortgagee or his personal repre-
sentatives, may at law recover the slaves of the personal repre-
sentatives of the mortgagor. Joyner v. Vincent, 4 Dev. and
Bat., 512.
10. A mortgagee is not, under any circumstances, as between
him and the mortgagor, obliged to take possession of the mort-
gaged property before a forfeiture; and until a forfeiture by the
non-payment of the money, the possession of the mortgagor
cannot be adverse to the mortgagee, so as to create a bar by the
statute of limitations. Ibid.
11. A mortgagee, after the day of payment passed, may bring
an action of ejectment against the mortgagor, without any no-
tice to quit or demand of possession. Fuller v. Wadsworth, 2
Ired., 2(i3.
12. A mortgage was made which was subject to the lien of an
execution, under which the land was sold and brought more
than enough to satisfy it, and it ivas Iteld that the mortgagee was
entitled at law to recover the surplus. Jones v. Thomas, 4 Ired.,
12.
13. The possession of a wadow of land assigned to her in
dower, is not adverse to the mortgagee of her husband, or to the
assignee of the husband. The widow's estate in her dower land
is but a continuation of that of her husband, and is affected by
the same estoppels, which attached to it in the hands of the
husband. Williams v. Bennett, 4 Ired., 122.
14. The mortgagor is concluded by his deed, and, after its ex-
ecution, his possession is by the consent of the mortgagee and
is in law the possession of the mortgagee. Ibid.
15. A mortgagor, or one claiming under him, is not entitled
to a notice to quit from the mortgagee. Ibid.
920 MOETGAGE.
16. A delay of a mortgagee to enforce the payment of his
debt is not fraudulent so as to make his mortgage void, but the
creditor may have his remedy in equity, or promptly at law by
a sale of the equity of redemption. Davis v. Evans, 5 Ired.,525.
17. One who has made a mortgage to secure a debt, may af-
terwards convey the same property absolutely to the mortgagee
in satisfaction of the debt, provided the conveyance be bona fide
and for a fair price. Shelton v. Hampton, 6 Ired., 216.
18. The following sealed instrument was executed between
the parties: "Know all men by these presents, that I. E. T. have
this clay bargained for a sorrel filly Avith W. G., which filly I
want to stand as security until I pay him lor her. I also prom-
ise to take good care of her." It was held that upon the face of
the instrument it was doubtful, whether it was intended as a
mortgage or conditional sale, and that it was properly left to the
jury to determine its character from the accompanying circum-
stances. Gaither v. Teague, 7 Ired., 460.
19. Whether an instrument is a mortgage or not, is a question
of law for the court, and it is error to submit it to the jury.
Smithv. Jones, lo Ired., 442.
20. The statute presumption of the payment of mortgages,
from lapse of time, is payment at the day the debt fell due, and
the legal estate revests in the mortgagor without a re-convey-
ance. As where the owner of land sold it and took a mortgage
for the purchase money, and the purchaser entered and continu-
ed in possession for more than tliirteen years ; it icas held that
the condition of the mortgage deed was performed at the day
and the legal estate revested in the mortgagor by force of the
condition. Powell v. BrinJdey, Busb., 154. (See Eev. Code, ch.
65, sec. 19.)
21. As between the parties, a mortgage is valid without reg-
istration. Leggett v. Bullock, Busb., 283.
22. A conveyance of a chattel in writing absolute in the con-
veying part, to which is added a condition that it shall be void,
if the vendor pay to the vendee a certain sum of money which
he owes to him, is a mortgage and is void as against creditors if
not duly registered. 3IcFadden v. Turner, 3 Jones, 481.
23. A mortgagee who has had seven years' possession of the
premises under his mortgage deed previously to the entry of a
stranger, can recover the possession from him by an action of
ejectment whether the mortgage debts have been paid or not.
Bennett v. Williamson, 5 Jones, 307.
See (Estoppel — By matter other than by record or deed,_ 9.)
(Execution — What may be levied on and sold under execution,
9-10-11-12-13.) (Registration, 9.) (Trover— Where it will lie,
23.) (Usury — What transactions are usurious, 25-26.)
MURDER— NAVIGATION— NEGLIGENCE, ETC. 921
MURDER.
See (Homicide.)
NAVIGATION.
See (Constitution — Acts which have been declared constitu-
tional, 8-10.) (Rivers and Creeks, 1-2-8-9-10-11-12.)
NEGLIGENCE.
See (Action on the case — When the action will or will not lie
in other cases. 2-7-8-9-10-15-16-17-19-21-22-23-24-25-26-
31-32-33-84-35-36-37-40-41-42-43-44.) (Bailment, 1-2-11-
12-13-14-18.)
NEW TRIAL.
I. When and upon what terras granted
in civil cases»
II. When refused in civil cases.
III. When granted or refused in crimi-
nal cases.
IV. When ordered or refused by the
supreme court.
I. WHEN AND UPON WHAT TERMS GR.\NTED IN CIVIL CASES.
1. A new trial granted on payment of full costs, after a non-
suit voluntarily suffered, on the plaintiff's making- affidavit that
a witness by whom he expected to repel the plea of the statute
of limitations, had voluntarily withdrawn himself just before the
cause was called for trial. Shep'pavd v. Salter, Mar., 40, (31.)
2. Where the law is clearly for the plaintiff, the court will
grant a new trial, though several juries iiave found for tlie de-
fendant, ^fuqjhy V. Ginon, 2 Hay., 162, (347.) S. P. Jones v.
Ridley, 2 Car. Law Repos., 397, (280.) Hamilton v. Bullock, 2
922 NEW TRIAL— I.
Hay., 224, (399.) Commissioners of Fayetteville v. James, 1 Miirph.,
40/ S. C. Conf. Rep., 55(5, (514.)
3. After special verdict iiad been found live years and argued
twice, a motion to show cause for a new trial was granted.
Hi'im V. Wood, 2 Hay., 220, (394.)
4. If it be proved that the prevaihng party has tampered with
the jurv, a new trial will be granted. Wright v. Wright, 1 Car.
L. R., 363, (31.)
5. A rule for a new trial may be entered nunc pro tunc, the
clerk having omitted to enter it at the proper time. Hoioard v.
Person, 1 Murph., 100, S. C. 2 Hay., 37(5, (573.)
6. A new trial was granted to the plaintiff in an action of
deceit in the sale of a slave, when the jurj' found, against very
strong circumstantial evidence to prove the deceit, there being-
no positive evidence of the fact. 3Iann v. Parker, 2 ]\Iurph., 2(52,
S. C. 1 Car. L. R., 242, (19.)
7. The court may grant a new trial in an action of slander,
when the jury have fonnd a verdict for the defendant in a case
where they ought to have given exemplarv damages to the plain-
tiff. Horton v. B.eavis, 2 Gar. L. R., 276, (256.)
8. If a plaintiff be non-suited because not ready for trial when
his cause is called, he may, upon a sufficient affidavit, have the
non-suit set aside and a new trial granted on the payment of
costs. Williams v. Harper, 2 Car. L. R., 401, (284.)
9. Where the plaintiff obtains a verdict, but the statement of
the case shows he had no title, a new trial must be granted. But
if the merits appear to be with him, the court will give him leave
to add other counts. Pollock v. Kittrell, N. C. Term, R., 152,
(585.)
10. ^ here a defendant upon being sued on a contract, pleads
the statute of limitations which plea is true, but the jury disre-
gards it and finds f^r the plaintiff, the court will grant a new
trial, if justice has not been done on the merits. Spurlin v.
Rutherford, 2 Murph., 360.
11. A venire de novo will be granted, where the jury in a spe-
cial verdict find the evidence and not the facts. Cherry v. Slade,
3 Alurph., S2.
12. A new trial will be granted for misdirection, although the
record does not show that the verdict ought to have been other-
wise, had the court directed otherwise. Tate v. Southard, 1
Hawks, 45.
13. A new trial will sometimes be granted on the ground of
surprise in matter of law, as where the question is really a
doubtful one. Wellborn v. Younger, 3 Hawks, 205.
14. Where the facts in a special verdict are not sufficient to
dispose of all the issues submitted to the jury, no judgment can
be given thereon, and a new trial must be awarded. Humphreys
V. Buie, 1 Dev., 184.
NEW TEIAL— I-II. 923
15. "When the plaintiff prays proper instructions as to the ti-
tle of the defendant, which are refused, a new trial will be gran-
ted, although if the defendant had prayed proper instructions as
to the title of the plaintiff, the judgment would have been cor-
rect. Walton V. i^fcdliiigs, 4 Dev., 56.
16. Although a party may get a verdict, notwithstanding an
erroneous charge against him upon a particular point, yet if the
opinion given may have prevented the other party relying on,
or have excluded from the case stated, other evidence that was
given, a new trial will be granted. Jones v. Touiuj, 1 Dev. and
Bat, 352.
17. Where an appeal was taken from the judgment of a jus-
tice to the superior court by one of two defendants, but by mis-
take it was taken up as the appeal of both, was tried as the ap-
peal of both, and upon the trial, the admissions of the party who
did not appeal, were given in evidence against the party who did
appeal, and after the trial and a verdict in favor of the plaintiff,
the justice was permitted, by consent of parties, to amend his
proceedings so as to make it the append of one only, it was held that
the verdict ought to have been set aside and a new trial granted;
for by the amendment the admissions of the dismissed party were
rendered incompetent. JVilfong v. Cline, 1 Jones, 41)9.
See (Forcible Entry and Detainer, 2.)
H. WHEN REFUSED IX CIVIL CASES.
1. The court may properly refuse a new trial when the ver-
dict, though against the weight of the evidence, is in accordance
with the justice and equity of the case. Billew v. Bor/gan, 1
Hay., 13, (18.) S. P., Allen y. Jordan, 2 Hav., 132, (298,) Man-
ning V. BricMl, 2 Hay., 133, (301.)
2. In a hard action against an officer where the jury have
found for the defendant, whose conduct has been bona fide and
according to common practice, though not strictly according to
law, the court will not grant a new trial. Taqert v. Hill, Tay.,
277, (117.) S. C, Conf Rep., 164, (283.)
3. If a plaintiff supposing himself ready to press a trial, and
he finds himself unprepared because his testimony, upon which
he relied, is rejected, the allegation of surprise is not sufficient
to have the nonsuit set aside and a new trial granted. Murray
V. Marsh, 2 Hay., 290, (472.)
4. A new trial will not be granted on the ground of surprise,
where plaintiff is not permitted to read depositions because of
the deponent's being suretv for the costs. Arrington v. Cole-
man, 2 Hay., 300, (489.X
5. Where the plaintift's counsel offered on the trial an attested
copy of a bill of sale of a slave, without accounting for the orig-
inal, and was thereupon non-suited, a new trial was refused,
924 NEW TEIAL— 11.
because it was a case of negligence and not surprise, Thompson
V. Thompson, 2 Hay., 405, {Q12.)
6. Surprise in questions of law, if they are really such, as to
afford room for doubt, forms a ground for a new trial, but not
the mistake of counsel in a plain point. Lester v. Zaclmry, 1
Car. L. R. 380, (50.)
7. Where a defendant on a trial for assault and battery pro-
duced a witness to prove that notice was given to the plaintiff
to produce a warrant on which he rested his justification, and
the witness was unable to recollect what the notice required to
be produced, the court refused a new trial because the defen-
dant had not stated in his affidavit that he could have justified
it he had been allowed to prove the contents of the warrant.
Gardner v. Barrel, 1 Car. L. E. 381, (51.)
8. In a caveated entry, when the evidence had been fairly and
fully submitted to the jury, and the case was one entirely of
matter of fact, the court refused a new trial. Mclnnis v. 31clanis,
I Car. R. R. 541, (154.)
9. The court will not grant a new trial upon the affidavit of
one of the jurors that he did not agree to the verdict. Suttrel v.
Dry, 1 Murph., 94.
10. Facts known to a party before trial but not proved, upon
the ground that he believed the evidence offered was sufficient,
furnish no good reason for a ne v trial. Person v. La'jy, 1
Murph., 115.
11. Affidavits of jurors that they had misconceived a material
lact, afford no ground for a new trial, particularly when the
affidavits appear to be in the handwriting of the party applying
for it. Lester v. Goode, 2 ]\Iurph , 37.
12. It is no ground for a new trial that a bystander remarked
tliat he knew more about the matter in controversy than all the
witnesses examined, and then left the court before he could be
summoned. Ibid.
13. Where the plaintiff neglected to produce on the trial, an
essential part of the evidence, a new trial was refused although
he alleged that he was taken by surprise because the objection
had not been taken on several former trials of the same cause.
Porter v. Wood, 2 Car. L. R. 248, (226.)
14. Where, on the trial of an issue devisavit vel non, the will
was attested by two witnesses, one of whom was absent_ from
the state and whose credibility was impeached at the trial, so
that the will was proved only by the other, whose testimon_y if
credible, the court instructed the jury, was sufficient to establish
the will, although the absent witness was proved to be unworthy
of credit, the jurv found against the will, and the court refused
to grant a new trial. Wright v. Wrig ,t, 2 Car. L. R. 625, (429.)
15. In action of tort, the court will not grant a new trial for
NEW TRIAL— II. 925
■excessive damages, unless they are grossly extravagant. Dodd
V. Hamilton, N. C. Term R., 31, (471.)
1(3. If the jmy find against the plea of usury, though the
verdict may be against the weight of evidence, yet if it be a
case of some doubt Avhether usuiy was committed, the court
will refuse to grant a new trial. King v. Hill, N. C. Term R.,
211, ((i44.)
17. A new trial will not be granted on an affidavit lor the
absence of a material witness luider circumstances which would
not have induced the court to continue the cause for the absence
of the witnei-8. PeelleJ v. Overton, 2 Murph., 384.
1<^'. ^Viieie a defendant moved for a new trial upon the ground
that a copy of a deed under which it was alleged that he claimed,
was admitted, although no notice had been given to him to pro-
duce it, the new trial was refused because he declined to make
affidavit that he did not claim under the deed, and it did not
appear that any injustice had been done by the verdict. JVagstaf
V. Smith, 2 Hawks, 45, S. P. Clark v, Blcurd, 3 Hawks, 208.
19. If a release be offered in the course of a trial to render a
witness competent, and it is read without objection made at the
time as to the want of the proof of its execution by the subscrib-
ing witness, such objection cannot be raised after a verdict as the
ground of a new trial. Tatem v. Paine, 4 Hawks, G4.
20. Where an objection, which would have been ameie matter
of form, if made on the trial, is not made until after a full and
fair trial, a new trial should not be granted, ii/oore v. McNairq,
1 Dev., 319.
21. In trespass, when not guilty and justification are pleaded,
and the jury find the defendant not gnilty, the rejection of ad-
missible testimony pertinent to the latter issue only, is not
ground for a new trial. Pierce v. 3Iyrick, 1 Dev., 345.
22. If a question of law be improperly submitted to the jury,
and they decide it correctly, there is no ground for a new trial.
Smith V. Shepard, 1 Dev., 401.
23. Wh(>re evidence proper for one purpose, was, by the coim-
s^d who introduced it, urged to the jury as proof of a fact, to
which it was incompetent, and the counsel on the other side
replied to this argument, but moved for no specific instructions
upon the point from the bench, it vas held that there was no
ground for a new trial. Simpson v. Blount, 3 Dev., 34.
24. Where there are several counts in a declaration, and on
one of them im-proper evidence is received, if the party against
whom the evidence was offered, obtained a verdict on thatcormt,
he has no right to a new trial on the other, on which the verdict
was against him. Ycuvr/ v. Hairstov, 3 Dev., 55.
25. The admission of improper testimony, not objected to by
the opposite, is no ground for a new trial. Green v. Harman, 4
Dev., 158.
926 NEW TRIAL— II.
26. The refusal by tlie court to permit a witness to be re-ex-
amined, is no ground for a new trial, as the refusal was a matter
of discretion with the court. Barton v. MoiyMs, 4 Dev., 240.
27. Where no particular instructions were asked on the trial,
a new trial will not be granted, unless the party praying it, can
show that tlie jury was probably misled by the charge of the
judge. Torrtn-'e v. Graham, 1 Dev. and Bat., 284. *
28. The reception of improper testimony will not be a ground
lor a new trial, if the only effect of suoh testimony can be to
remove or weaken improper testimony introduced on the other
side. A judgment will not be reversed for inadvertencies or
mistakes whicli did not and could not affect the rights of him
who complains of them. Ingram v. JVatkins, 1 Dev. and Bat.,
442.
29. Where testimony, competent for one purpose but not an-
other, Avas admitted after objection, but no instruction as to its
effect was prayed for, and it did not appear for what purpose it
was used, it ivas held that its reception alone could not be as-
signed as a ground for a new trial. Dobson v. Murphey. 1 Dew
and Bat, 586.
30. jMatters which might been introduced on the trial oi a
case, but which were not brought forward until a motion was
made for a new trial, should not be acted on by the court. Gib-
son V. Partee, 2 Dev. and Bat, 530.
31. If evidence strictly irrelevant has been admitted, a right
verdict ought not to be set aside and a new trial granted on ac-
count of its reception, unless it is perceived that it worked a
prejuchce to the party. Maij v. Gentry, 4 Dev. and Bat, 117.
32. Where matters might have been offered in evidence on the
trial, but were not, they form no ground for granting a new
trial. Beed v. Moore, 3 Ired., 310.
33. It is no ground for a new trial, that a challenge of a juror
by a party has been improperly overruled, where the cause has
l)een tried by a jury to whom the party had no objection, not
liaving been prevented from exercising his privilege of challen-
ging four jurors peremptorily. WhitaJcer v. Carter, 4 Ired., 461.
34. Where a part of the charge of the court to the jury rela-
ted to a matter totally immaterial, benefitting neither plaintiff
nor defendant, it is no ground for a new trial. Bailiff v. Himt-
Jij, 5 Ired., 545.
35. Where a question of law is left to [the jury, and the ver-
dict shows that they decided it properly, it is no ground for a
new trial. Marshall v. Fisher, 1 Jones, 111.
36. Where the judge erred on the trial in ruliiig out testi-
mony, but if proposed by the opposite counsel to waive the ob-
jecti(3n and permit the testimony to be received, which the coun-
sel who had offered it declined ; it ivas held that the error was
NEW TRIAL— II-III. 927
cured and the party was not entitled to a new trial. Marshall
V. Fliiw, 4 Jones, 199.
37. When testimony offered to prove a fact may have been
inqiroperly rejected, yet it will be no ground for a new trial if
the court assumes such fact to be true in the charge to the jury.
Thompson v. 3Iorris, 5 Jones, 151.
38. Where a judge improperly rejected evidence as to a par-
ticular fact material to the issue, but afterwards on instructing
the jury, told them to consider the fact as proved and to give
the party offering the evidence the full benefit of it in making
up their verdict; it ivas held that the error was corrected, and
that it Avas no ground for a new trial. Morehead v. Brown., (>
Jones, 367.
39. Where a judge gave instructions not material toanypoiut
in the cause, it is no ground for a new trial Avhetherthe instruc-
tions were correct or not. Skaiu v. Etheridge, 7 Jones, i'lb.
40. It is no ground for a new trial that the court refused to
permit a fact to be proved, which was admitted by the opposite
party. Fridgen v. Bounerman, 8 Jones, 53.
41. If the court erroneously submit a question of law to the
jury, and they, by their verdict, decide it correctly, it is not a
ground for a new trial. Stokes v. Arey, 8 Jones, 66.
42. An error in tiie charge of the judge to the jury, which can
not liave done an injury to the losing party, is no ground for a
venire de novo. Fagan v. Williamson, 8 Jones, 433.
HI. AVHEN GRANTED OR REFUSED IN CRIMINAL CASES.
1. Where one was convicted of peijury, and before sentence,
there was another trial of the suit in which the perjury was al-
leged to have been committed and in that trial, the court doubt-
ed whether the person charged with peijury had sworn falsely,
there was a new trial granted him on that ground. State v.
Greemcood, 1 Hay., 141, (162.)
2. It is no ground for a new trial that one of the jurors was
not a freeholder. Ihid. S. P., State v. Craiufoul, 2 Hay., 298,
(^^^■) . . ' . .
3. \\ hen the charge of the judge upon the law arising from
tlie evidence is partly right and partly wrong, and it cannot be
told upon what ptirt of the evidence the verdict was found, a
new trial will be granted. State v. Jernagan, N. C. Term, Ii.,44^
4. When a defendant in an indictment has been tried without
any issue having been joined, the court will award a venire de
novo, either to the defendant or to the State. State v. Hardie, 3
MvLYvh., 232.
5. The supreme court cannot grant the prisoner, even in a
928 NEW TRIAL— III.
capital case, a new trial, upon the ground that the jury have
found contrary to evidence State v. Jeffreys, 3 jNIurph., 840.
6. A new trial will not be granted to a prisoner, oecause a
juror, who had sworn that he had not formed an opinion as to
the guilt or innocence ot the prisoner, had remarked to a person
a few minutes before "that he could not serve becau-e he had
made up an opinion. State v. Scott, 1 Havv-ks, 24.
7. A new trial will be granted to a prisoner, if improper tes-
timony have been admitted, though there was sufficient testi-
mony to justify his conviction \^nthout it. It cannot be told
upon which testimony the jury relied. State v. Allen, 1 Hawks, 6,
8. After an acquittal of a defendant on a state prosecution, a
new trial cannot be granted. State v. Taylor^ 1 Hawks, 462, S.
P. State V. 3Iartin, 3 Hawks, 381.
9. When a question of law has been improperly left to the
jury, but has been correctly decided by them, a new trial will
not be granted. State v. JacTison, 2 Dev., 563.
10. Where, on a trialfor murder, the prisonerprovedhis general
peaceable demeanor, and the judge informed the jury that evi-
dence of character was entitled to but little weight, where facts
were positively sworn to, and it was doubtful, from the case,
whether this instruction referred to the fact of killing, or to the
amount of provocation, a new trial was granted. State v.
Lipsey, 3 Dev., 485.
11. The efi'ect of the separation of the jury, before they return
their verdict, and tlie difference between a new trial and a venire
de novo discussed and stated at length. State v. Miller, 1 Dev,
and Bat., 500.
12. An assumption by a judge in his charge, that a fact de-
posed to is true, but which, if true, cannot prejudice the prison-
er, is no ground for a new trial. Ibid.
13. When the attorney general, upon an appeal by the defen-
dant on an indictme'nt, informs the supreme court that he has
looked into the record, and that he consents that the venire de
novo prayed for should be granted, the court Avill, as a matter of
course, grant the venire de novo, without examining into the
errors assigned. State v. Volentine, 7 Ired., 141.
14. In a capital trial, if the judge eulogise a witness it is not
a ground for a venire de novo, if the statement of the case, which
is the plaintiff's bill of exceptions, shows that such a witness was
unimpeachable. State v. Hcviris, 1 Jones, 190.
15. Where a judge in charging the jury in a case of homicide
presents two views of the evidence, in one of which his instruc-
tion is erroneous, though the other was right, if it be left uncer-
tain whether or not the verdict was predicated on the erroneous
instruction, the defendant is entitled to a venire de novo. State
V. Inrjold, 4 Jones, 217.
16. When the error complained of in the charge of the judge
NE^Y TRIAL— III-IV. 929
is such that it could not in any degree aifect the prisoner's case
to his prejudice, a venire de novo, will not be ordered. State v.
Frank, 5 Jones, 384.
17. An erroneous remark of a judge upon the weight of tes-
timony which was inadmissible, and which remark could not
have influenced the verdict, is not a ground for granting a new
trial. State v. Neville, 6 Jones, 423.
18. It is error for the judge to leave to the jury the decision
of a fact on which the admissibility of evidence depends. But
if the prisoner making the exception could not have bean injur-
ed by it, the error is not a ground for a new trial. State v. Di^^k,
2 Winst., 45.
IV. WHEN ORDERED OR REFUSED BY THE SUPREME COURT.
1. When the transcript sent to the "supreme court contains so
imperfect a statement of facts, that the court cannot decide sat-
isfact(n-ily to themselves, a new trial will be ordered. Ilation
V. Dew, 1 Car. L. 11., 524, (137.,) S. P., Gilk!/ v. Dickerson, 2
Hawks, 341. Banner \. l\lcMurraii, 4 Hawks, 93. St(Ae v. Up-
ton, 1 Dev., 268. (Overruled, see Fickett v. Pickett, 3 Dev., 6.,
Thomas v. Alexander, 2 Dev. and Bat., 385.)
2. A case being sent to the supreme court upon a particular
point, and the court upon looking into the record and discover-
ing that there were other material points arising in the case and
connected with its merits, declined deciding the point sent up
and awarded a venire de novo, that all the circumstances relating
to the points discovered in this court, might be examined in the
court below. Coivan v. Green, 3 JMurpli., 569.
3. It is not a ground for the supreme court to grant a new
trial, that the court below has not stated the case on the record ;
for the appeal is not necessarily from the opinion ot the court on
points arising out of the facts at the trial, l)ut may be for error
in the pleadings. Frazier v. Felton, 1 Hawks, 231.
4. When the statement of the facts of a case before the supreme
court is su(;h as to admit of two views of them, and it is doubtful
which is the correct one, and according to one of the views, the
law has not been properly administered in the court below, a new
trial will be ordered. Love v. Wall, 1 Hawks, 313.
5. Where it appears from the certificate ot the judge, that a
case was intended to be made out by him, but none comes up
with the record, the supreme court will order a venire de novo.
Hamilton v. M':Cuh.ck,2 Hawks, 29, S. P. State v Powers,^
Hawks, 376. Andermn v. Hunt, Ibid, 244.
6. When the transcript of the record showed merely that the
court below decided upon the law and the jury returned a gen-
eral verdict on the facts, a new trial was refused. Jenkins v,
Lanndon, 2 Hawks, 386.
17*
930 NEW TRIAL-IV,
7. When a new trial is moved on the ground that the verdict
is contrary to law, and the charge of the court below is not
erroneous as to the law, the supren^e court cannot order a ncAV
trial, for it has net the power to ascertain that the verdict is
contrary to law. Neivhern Bank v. FugJi^ 2 Hawks, 389.
8. Where a judge refused further testimony after the close of
the arguments to the .jury on the authority of a former case,
which, in his opiuion, pl-evented the exercise of his discretion in
the reception of further testimony under such circumstances, a
veiire de novo was granted by the supreme coui't Williams v.
Averiff, 3 Hawks, 308.
9. Where upon a transcript and statement of the case sent
to the supreme court, it appears that the charge of the court
was not applicalile to the facts stated, a new trial must bt>
granted, for it there were no other evidence but that stated, the
charge was irrelevant, and if there were other evidence, it should
form part of the case. Finch v. EJlwtt, 4 Hawks, 61.
10. Where a judge below is correct in his statement of a rule
of law, but makes a misapplication of it, yet a new trial will not
be granted, if it appear from the finding that the jury were not
misled. Taiem v. Paine, 4 Hawks, 64.
11. When non detinet, or ?;ow assumpsit, and the statute of lim-
itations, are pleaded in detinue or assumpsit, and the jury find
the general issue for the defendant, the court will not, on a
motion for a new trial, examine into the correctness of the charge
•on the statute. Morisey v. Bunting, 1 Dev. 3, S- P. BuJlock v.
Bullock, 3 Dev., 260. Martin v. Wmujh, 2 Dev. and Bat., 517.
12. A new trial is a matter of discretion, and a refusal to
grant one cannot be assigned as error. The supreme court is a
court of errors in law, and the case stated by the judge is a sub-
stitute in our practice for a bill of exceptions; hence, this court
cannot grant a new trial, for the reason simpl}^ that the judge
below refused one, because that refusal is not error; but Mhere
the court below errs, as in receiving evidence, instructing the
jury and the like, this court will order a venire de novo, as a
means of correcting such error. State Bank v. Hunter, 1 Dev., 100,
13. A new trial for surprise can only be granted in the court
where the trial was had, and not in an appellate court. Lindsay
V. Lee, 1 Dev., 464.
14. When a verdict is against the evidence, a new trial can be
granted only hy the judge who tried the cause. Alley v. Hamt-
ion, 2 Dev., 11.
15. Where the judgment in the superior court was rendered
upon a point reserved, which did not appear on the record, the
remedy is for the supreme court to order a venire de novo. Dunett
V. Barksdale, 2 Dev., 251.
16. Under the act of 1777, respecting non-suits, where the
superior court has no jurisdiction, the court will not order a non-
NEW TRIAL-IV. 931
?^uit, unless on motion of the defendant; and where there has
been no such motion, but a verdict and judgment for the plain-
tiff, the supreme court will not order a new trial, Allison v
Hancock, 2 Dev., 296.
17. The supreme court will not order a new trial on the ground
of excessive damages, that being a matter exclusively within
the discretion of the court below. Yofmg v. Hairstoii, 3'^Dev., 55.
17. Where a party against whom a judge expresses an opinion
refuses to submit to it, but puts his case to the jury and is suc-
cessful; a new trial will not be granted, though the judge may
have erred, if, upon the whole case the verdict is correct. Grice
V Rich% 3 Dev., (VI.
19. Where the defendant must finally prevail, a new trial will
be ordered, although the judgment below was for the plaintiff, and
he appealed. Mordecai v. Parker. 3 Dev. 425.
20. Where, in the court below, a new trial was moved for,
because tlie judge expres.sed an opinion on the weight of evi-
dence, and the case, certified with the record, stated no instance
in which it had been done, but that the judge was unconscious
of having done so, it was held that the supreme court, having no
power to ascertain the fact, could not order a new trial, ^tate
V. Lipsey, 3 Dev., 485.
21. The supreme court cannot set aside a verdict and grant a
new trial, though in their opinion, the verdict was found upon
slight testimony. Goodman v. Smith, 4 Dev., 450,
22. Tlie supreme court cannot grant a new trial upon the
ground that the verdict was against the evidence or the weight
of the evidence, that being a matter of discretion with the
judge who presides at the trial in the court below, which cannot
be revised upon appeal. Long v. Gantleij, 4 Dev. and Bat., 313.
23. The supreme court cannot reverse a judgment of the su-
p<^rior court and order a new trial, because of the alleged finding
■i)f excessive damages by the jury, or of the refusal of the judge
to set aside that finding, that not being a question of law but
of discretion. McRoe v. Lilly, 1 Ired., 118,
24. If the charge of the judge to the jury be correct, or be
such that the party against whom a verdict is found cannot com-
plain of it, a mistake of the jury in finding a verdict without
evidence, or against evidence or against the law, can only be
corrected hy the judge presiding at the trial, and cannot be re-
vised by tlie supreme court upon an appeal. Terrell v. Wigqins,
I Ired., 172.
25. Surprise on the trial furnishes no ground for the interfer-
ence of the supreme court, it being matter ior the sole conside-
ration of the court below on a motion for a new trial. Wall v.
Jlinson, 1 Ired., 27(1
26. Where the judge below has misdirected the jury, and yet
the verdict has been such as it ought to have been, had there
932 NEW TRIAL— IV.
been no misdirection, the supreme court will not order a new
trial. It will do so only where the misdirection has misled the
jury into a Avrong verdict. Reynolds v. Magness, 2 Ired., 26.
27. Although it is erroneous to submit to the jury an enquiry
of fact, as to which there is no evidence, yet this court will sup-
pose the evidence, as stated in the case brought up from the
court below, to have been stated only in reference to the objec-
tions there raised, and will not grant a new trial, where an ex-
ception as to the total want of evidence, does not appear to have
been taken, either on the trial, or on a motion for a new trial.
Beed v. Moore, 3 Ired., 310.
28. Where the plaintiff against whom the judge in his charge
commits an error obtains the verdict, the defendant will be en-
titled to a new trial, if the princij^le so erroneously laid down,
might have prevented his making a fall defence. Clarke v.
Diggs, € Ired., 159.
29. A verdict on the merits of the case is to be set aside, and
a new trial granted only for an error of the superior court prac-
tically prejudicial. Smith v. Smith, 8 Ired., 29.
dOS In order to obtain a venire de novoi'or the admission of im-
proper evidence, it is not sufficient to state matter rendering it
probi\ble that such evidence may have been received, but it is
indispensable to state the evidence itself; otherwise the supreme
court cannot see that the evidence was illegal, and judgment
will be affirmed. State v. Clark, 12 Ired., 151.
31. When in detinue there is a verdict for the plaintiff and an
error in tlie assessment of damages only, a venire de novo will not
be ordered. McAUister v. McAllister, 12 Ired., 184.
31. A party claiming a new trial, because of evidence improp-
erly rejected, must set forth in his bill of exceptio)is, what was
the evidence tendered, in order to enable the supreme court to
decide upon its relevancy. Overman v. Coble, 13 Ired., 1.
33. Where there is error in the charge of a judge, which was
excepted to, the supreme court will order a venire de noco, unless
the appellee can show conclusively from the record, that the er-
ror could not in any wise have affected the verdict. Chunn v.
Patton, 13 Ired., 421.
34. The supreme court will order a venire de novo, where the
judge in the court below has submitted a material fact to the
jury without any evidence to support it. Commissioners of
Beaufort v. Duncan, 1 Jones, 234.
35'. Where it appears from the record proper sent to the su-
preme court, that on the trial below, a question of law was re-
served by the court, to which the verdict was subject, and that
question\vaB decided in favour of the defendant, upon which the
vei'dict was set aside and a nonsuit ordered, but -upon an appeal
by the plaintiff, the judgment fails to state what that question
NEW TRIAL— IV. 933
was, there must be a venire de novo. Brown v. Kyle, 2 Jones,
442.
3G. Where an error in the judge's charge is favorable to the
party excepting, the supreme court will not order a venire de
novo. Ray v. Lipscomb, 3 Jones, 185.
37. The supreme court will not order a venire de novo for the
admission of testimony entirely immaterial, and which could not
aifect the case in any way. Frnull y. llldtford, 3 Jones, 474.
o8. The supreme court will order a venire de novo for the ad-
mission of immaterial evidence, when it was calculated to mis-
lead the jury and may have done so. Patton, v. Porter, 3 Jones,
539.
39. A new trial can only be granted in tlie superior court up-
on the ground that the verdict is against the weight of evidence
and cannot for that cause be ordered by the supreme court. Boy-
hin v. Perry, 4 Jones, 325.
40. Where the question was whether bonds could be endorsed
by the statute law of another state, and no evidence of such stat-
ute law was produced on the trial in the court below, the supremo
court will not grant a new trial for an error caused by such
omission, if it be certified to the court by the secretary of state
that, from the statutes of such state filed in the executive office,
it appears that bonds are made negotiable in that state. Grace
V. Hanval), (J Jones, 94.
41. Where the instructions given in the court below could not
in any degree prejudice the cause of the exceptant, even if erro-
neous, it is no ground for the supreme court to order a venire de
novo. Hohhs v. Outhiv, 6 Jones, 1 74.
42. When the general issue is pleaded together with special
pleas, and the jury find all the issues in flivor of the defendant,
the supreme court cannot reverse the judgment and order a new
trial for error in the charge of the judge respecting the matter
of the special pleas. _ Higdon v. Cha.stcane, 1 Winst., 212.
43. When a question arises on a jury trial concernijigthe com-
petency of a witness, and the parties disagree about the fVicts on
which the witness' competency depends, and the judge decides
that the witness is competent, but does not state the facts which
he finds to be proved, this court cannot see whether his decision
as to competency of the witness was right or not, and it will on
that account order a venire de novo. State v. Norton, 1 Winst.,
303.
See (Practice — In the supreme court, 79.)
9M NOLLE PROSEQUI AND NONSUIT— NUISANCE:
NOLLE PROSEQUI AND NONSUIT.
See (Practice — Nonsuit and Nolle prosequi,) (Indictment —
Effect of a nolle prosequi,) (Indictment — 01 the trial, verdict
and judgment, 24-25-55.)
NUISANCE.,
1. For any of those acts which are in the nature of a public
nuisance, no individual is entitled to an action, unless he has re-
ceived an extraordinary and particular damage not common
to the rest of the citizens. Dunn v. Stone, 2 Car., L. Pt. 261
2. To render an act indictable as a nuisance, it is necessary
that it should be an act so inconvenient and troublesome as to
annoy the whole community, and not merely particular persons..
Therefore, where it was charged that the defendants assembled
at a public place, and profanely and with a loud voice, cursed,
swore and quarelled in the hearing of divers persons, then and
there assembled whereby a certain singing school was broken
up and disturbed "to the common nuisanca," &c , itivasheld.,
that the indictment could not be sustained as one for a common
nuisance. State v. Baldivin, 1 Dev. and Bat., 195.
3. A stable in a town is not, like a slaughter pen or a hog
stj^e, necessarily, or prima facie, a nuisance. But if it be so
built, so kept or so used, as to destroy the comfort of persons
owning and occupying adjoining premises, and impairing their
value as places of habitation, it becomes thereby a nuisance.
Dargan v. JVaddill, 9 Ired. 244.
4. If the adjacent proprietors be annoyed by it in any manner
which could be avoided, the stable becomes an actionable nuis-
ance, though it be in itself a convenient and lawful erection.
Ibid.
5. Upon a charge for keeping a disorderly house, it appeared
that the defendant lived in the country, remote from a public
road, and that loud noises and proftme swearing were often kept
up by his live sons, whom he did not encourage, save by his bad
example in getting drunk himself, but sometimes endeavored to
keep them quiet, by which disorder, only two families in a thick-
ly settled neighborhood, were disturbed; it was held, not to
amount to a common nuisance. State v. Wright, 6 Jones, 25.
NUISANCE— OFFICERS AND OFFICES. 935
dictment —
(Indictmen
78-79-82-140-141.)
See (Indictment— In what cases an indictment will lie, 10-14
-16-68,) (Indictment— Form and matters relating thereto, 30-
OFFICERS AND OFFICES.
1. It is the dnty of public officers who are paid for their ser-
vices, to inrnish blanks to be executed by individuals who Iiave
business to transact with them in their official characters. Mann
V. Vick, 1 Hawks, 427.
2. An office is the property of the incumbent. Hoke v. Hen-
derson, 4 Dev. 1.
3. In the absence of constitutional restriction, the creation,
continuance, duties and emoluments of an office, are matters of
political expediency, and to be juda^ed ot solely by the leo:isla-
ture. But it cannot continue an office, and oust the incumbent
or lessen the tenure of his office, oi transfer his right to another.
Ibid.
4. Offices, that are only political agencies, may be vacated at
any time; those to which a personal interest is attached, can
only be vacated upon conviction for a default. Ibid.
5. Offices are held at the will of both parties, and though an
officer may resign, yet, if his resignation be not accepted, it is
nothing, and he still remains in office. Ibid.
6. A person wlio undertakes an office, and is in office de facto,
although not legally appointed thereto, is bound to perform all
the duties, and is liable for their omission, in the same manner,
as if the appointment were strictly legal, and his right perfect.
State Y. McEi.tire, 3 Ired., 171.
7. The acts of officers de facio are as effectual, so faras the
rights of third persons or the public are concerned, as if they
were officers de Jure. Burke v. Elliotf, 4 Ired., 355.
8. What shall constitute an officer defado may admit of doubt
in different cases. The mere assumption of the office by per-
forming one or even several acts appropriate to it, without any
recognition of the officer by the appointing power, may not be
sufficient to constitute him an officer de facto. There must at
least be some colorable election and induction into office ah
origine, and some action thereunder, or so long an exercise of
the office and af;quiescence therein of the public authorities, ag
to afford to an individual cirizen a strong presumption, that the
party was duly appointed, and therefore, that every person might
compel him for the legal fees, to do his business, and for the
93(J OFFICERS AND OFFICES.
same reason was bound to submit to his authority, as the officer
of the country. Ihid.
9. The acts of officers de facto acting openly and notoriously
in the exercise of the office for a considerable time, must be held
as eftectual when they concern the rights of third persons or the
public, as if they were the acts of rightful officers. Gilliam v.
Reddiek, 4 Ired., 368.
10. Where one has been appointed a coroner of a county,
though it may appear that he has not renewed his official bonds
as required by law, yet his acts as coroner de facto, are valid, at
leagt as regards third persons. Mabry v. Turrentine, 8 Ired., 201.
11. The Revised Code, ch. 78, sec. 5, gives a summary remedy
against public officers only to creditors and others who are en-
titled to the money in the hands of the officer, so that a new
clerk cannot proceed under it against a former clerk, for not
paying over office money to him as his successor. O'Leary v.
Harrison, 6 Jones, 338.
12. Persons entering into office under color of an irregular
election, are thereby constituted officers de facto, and their offi-
cial acts have full force until they are removed by a writ of quo
warrardo. Commissioners of Trenton v. McDaniel, 7 Jones, 107.
13. While an office continues, the legislature cannot oust an
incumbent during the term for which he has been chosen. Cot-
ten V. Ellis, 7 J ones, ij45.
14. The legislature may increase or reduce the salaries of all
such officers as are not protected by the constitution during their
term of office, but it cannot deprive them of the whole salarv.
Ibid.
15. The acts of one ptn^porting to be an officer, are evidence
of his authority, and such acts, as to third persons, are to be
taken as valid, while the incumbent is thus acting. Swindle v.
Warden, 7 Jones, 575.
16. The office of brigadier general luider the Confederate States
was held to be incompatible with that of adjutant general of the
State of North-Carolina, and the acceptanve of the former office
was held to vacate the latter which was held at the time of such
acceptance. In the mcdter of General J. G. Blartin, 1 VVinst., 153,
in the appendix.
See (Constitution — Construction of various clauses of the con-
stitution, 19.) (Indictment — In what cases an indictment will
lie, 7-8-37-42-83-89.) (Indictment — Form and matters relating
thereto, 84-97-153.) ' (Indictment — Of the trial, verdict anct
judgment, 5.)
OVERSEERS. 937
OVERSEERS.
1. The forfeiture upon an overseer by the act of 1741 for leav-
ing his employer's service during the time for which he was em-
ployed, does not attach to a case, where by the stipulation of the
parties, the overseer may leave, or the employer may discharge
him, at pleasure. iSteed v. 3IcRae, 1 Dev. and Bat., 435. (See
Rev. Code, ch. 80.)
2. A ccntract for service as an overseer, in which it is stipula-
ted that the overseer may leave his employer's service, or his
employer may discharge him, at pleasure, will be constraed so
as to give the overseer a pro rata compensation during the time
he may serve. Ibid.
3. An overseer is not strictly a bailee, though many of the
principles of that relation, and many of its duties attach to him.
It is his duty to take such care of the property entrusted to him,
as a man of ordinary prudence would take of his own property.
Smifh V. Cameron, 11 Ired., 572.
4. Where an overseer was employed for a year and served du-
ring that time, it was held, in a suit for stipidated wag-es, that the
employer was not at liberty to show that the plaintiff was lazy
and trifling and had made a poor crop. Hohbi v. Reddick, 5
flones. 80.
5. Where an overseer was employed upon a special contract
by the year, and was turned off by his employer daring the vear
without sufficient cause, and afterwards sought and obtained oth-
er employment during the same year, it ivas Jield, in an action to
recover the full price from the employer, that Avhat the overseer
had made by other employment during the year ought properly
to be allowed in mitigation of damages. Hendrickson v. Ander-
son, 5 fJones, 24G.
G. Whether the misconduct complained of by an employer
against his overseer was a sufficient cause for dismissing him, is
a question of law for the court. Ibid.
7. An overseer cannot maintain an action for his wages if ho
misconducts himself in such a manner as to justify his employer
in dismissing him; and it will be such misconduct for him to
frequent grogshops in his neighborhood during the hours of the
day when he ought to be attending to the Ijusiness of his em-
ployer. Fly V. Armstronr/, 5 Jones, 339.
8. It is a good ground for discharging an overseer that he
assumed to control the slaves under liis care, against the known
wishes and positive commands of his employer. Lane v. Phil-
lips, 0 .Tones, 455.
9. Where an overseer acts so badly as to compel his employer
to dismiss him before the end of the time for which he contrac-
938 OVEESEERS— OVERSEERS OF ROADS— PARDON.
ted to serve, he cannot recover any thing for services rendered
previous to sucii discharge. Ibid.
10. Where an overseer was discharged for good cause, and the
employer offered to pay him pro rata for the time he had served,,
which he refused to take, he cannot recover the amount thus
tendered afterwards. Ibid.
OVERSEERS OF ROADS.
See (Highway, 3-4-17-20-31-33-39-44.)
PARDON.
The Governor cannot, under the constitution, add to or com-
mute a punishment; but under the pardoning power, he may
remit a part of the fine. Staie v. Ticitty, 4 Hawks, 193.
2. Wlierc it appears from the record of the court, and from the
pardon itseH', that it was obtained upon false suggestions, it is
void, and may be so treated by the ccjurt. State v. 31clntire, 1
Jones, 1.
3. When it appears from the pardon itself, that the Governor
thought the defendant had been sentenced to pay a fine, as well
as to be imprisoned, and the imprisonment is remitted upon con-
dition that the fine be paid,. when in fact there is no fine,, the
pardon is void. Ibid.
4. Tlie Governor may pardon a portion of the punishment after
it is fixed by the judgment; but it is questionable whether he
can pardon a portion of the supposed punishment, where it is
discretionary, before it is fixed by the judgment. Ibid.
5. Thongh the pardoning power is undoubtedly general, yet
if the punishment be at the discretion of the presiding judge,
the presumption is that it will only be exercisesed in extreme
cases. Ibid.
6. It seems that the statute pardon, which is incident to the
benefit of clergy, does not take efiect until the party is burned
in the hand and delivered out of prison. If the record of the
court omit to show the execution of the sentence, the party
claiming the benefit of such pardon, may show it by a witness.
Keith V. Goodwin, 6 Jones, 398.
PARDON— PARTIES. 939
(The benefit of clergy, with all its incidents, is now abolished.
See Rev. Code, ch. 34, sec. 22 and 23.)
PARTIES.
1. It is not error to refuse to dismiss a case on motion for want
of parties, thong-h it may be error to decree finally without them.
Morrison v. McEIrafh, 4'^Dev. and Bat., 474.
2. Where a paper under which a plaintiff in a petition claims
to be an assignee, does not on its face purport to be an assign-
ment, but only an order for money, it is necessary that the
alleged assignor or his personal representative should be a party
to the petition, either plaintiff or defendant. Clark v. EdnevS^
Ired., 50. ^
3. On a petition against administrators for a distributive
share of an estate, all persons entitled to distribution should be
made parties. Ihid.
4. The plaintifis sued out a writ against a defendant, which was
returned _ 'I «o«, est inventus" and it luas held that they might
m then- joint names sustain an action for a ftilse return, both
T^ ^"^o™^^*'' "^ ^^ ^^® parties grieved. Houser v. Hampton, 7
Ired., 333.
_ 5. Where money has been paid into a clerk's office upon a
judgment, and the judgment is assigned, or the attorney's receipt
for the note on which the judgment Avas obtained 'has been
transferred, by the plaintiff" in the judgment to a third person,
such assignee has no right to sue the clerk for the money in his
own name, as he had but an equitable interest. Slate v. Miller
11 Ired., 235. '
6. Where a debtor delivered to his creditor, without endorse-
ment, a bond on a third person as collateral security, with an
agreement that it should be returned if not collected, and the
creditor hiinded it to a constable for collection and took from
mm a receipt as for himself, it was held in a suit on the consta-
bles oflicial bond for a default in not collecting, that the creditor
was the proper person to be made relator. Chipleu v. Aired, 8
Jones, 204. "^
See (Partnership— What constitutes a partnership, &c., 7-19 )
(Penal Statutes, 17.) (Pleading— Of the writ and declaration,
30-21-3G. )
940 PAETITIOK
PARFITION.
1. Where there was a devise of three lots to A, B, C, and A
died, whereby his lot descended to B, Avho sold two of the lots,
leavin^^ the third, lield to be evidence of a partition and that the
third was assigned toG. Slade v. Orecn, 2 Hay., 75, (242,) S. C
Tay., Ill, ((36.)
2. To render a partition among co-heirs under an order of the
connty court, valid, it must appear that a petition was filed, that
all the heirs were represented, that the commissioners were
sworn, and that they returiied their proceedings under their
hands and seals ; and a partition made without these requisites,
is not validated by the assent of the heirs at the time, nor by
their subsequent acquiescence. Anders v. Anders. 2 iJev., 529.
3. A partition cannot be made by tenants in coinmon by parol.
McPherson v. Sequine, 3 Dev., 153.
4. A proceeding for partition at law cannot take place unless
there be a common possession; and a common possession is
always implied from a common title, until the contrary be shown.
But if an actual ouster of one tenant in common be made by his
co-tenant, there is no longer a common possession, and the rem-
edy is not by a petition for partition, but by ejectment. Thomo,s
v. Garvan, 4 Dev., 323.
5. The report of commissioners appointed to divide the lands
of intestates, under the acts of 1787 and 1801, will be presumed
to be correct and be conlirmed, although one dividend of land
be nearly double, and another not half the average value of the
shares, unless something improper appears on the face of the
return, or is shown by extrinsic proof Nicelar v. Barhrick, 1
Dev. and Bat., 257. (See Kev. Code, ch. 82, sees. 1 and 3.)
(). A judgment merely that the report ot commissioners to
divide land "be confirmed," without ordering it to be recorded,
and giving judgment for the costs, it seems, is an interlocutory
and not a final judgment. Ibid.
7. Where slaves on the petition of the owners have been or-
dered to be sold for a division, a person who was no party to the
petition, but claimed by a lien under an execution against one
of the petitioners before the sale, has no right to apply to the
court to have the share of such petitioner in the proceeds paid
over to him. In flie matter of Harding, 3 Ired., 320.
8. Where a petition was filed in the county court for the par-
tition of slaves among tenants in common, an order was made
and the commissioners made a division and a return of their re-
port, which was confirmed, assigning to the agent of one of the
petitioners a certain number of slaves, and also a sum of money
to be paid to him as agent by another of tlie petitioners for
equality of partition; no formal decree, however was drawn,
PARTITION. 941
and it tvas held, that the agent could not, by a notice in his own
name, call upon the other petitioners to have the decree entered
in his favor, or to pay the sum so awarded. Irwin v. King, fi
Ired,, 219.
9. The act of 1829 for the partition of slaves or other personal
chattels applies only to a plain legal tenancy in common, and
not at all to a suit against an executor for negroes, as part of a
legacy to two or more persons in common. In the latter case
the rights cannot be ascertained until the administration has
been closed, or all the accounts liave been taken, and the execu-
tor is proceeded against in his character of a trustee for the le-
gatees. Amis V. Amis, 7 Ired., 219. (See Rev, Code, ch. 82, sec.
10. The law gives to tenants in common an absolute right to
have their land divided; and the decree for partition should
show on its face, the particular land to be divided, and the por-
tion or share of the land to which each of the tenants is enti-
tled. Ledbetter v. Gash, 8 Ired., 4G2. (See Rev. Code, ch. 82,
sec. 1.)
11. On a petition for the partition of slaves, where the de-
fendant denies the petitioners right, and insists that he, the de-
fendant, is entitled to the slaves in severalty, it is not necessary
for the petitioner, as in the case of a petition for the partition of
land, to establish his right at law, before the relief he seeks, can
be granted. The court in which the petition is filed must decide
the question of right. Edwards v. Bennett, 10 Ired., 3i51.
12. Property held by partners in a iirm, is not tlie suljject of a
proceeding for partition under the act of 1829, Rev. Stat, ch.
85, sec, 18, whether the proceeding be by the partners or their
assignees — such cases can oidy be properly dealt with in a court
of equity. Flanner v. Moore, 2 Jones, 120. (See Rev. Code, ch.
82, sec. 17 and 18.)
13. A dissolution of the co-partnership without a settlement
of its affairs, does not convert the members uf tlie firm, or the
purchasers of the partnership effects mider them, into tenants
in common so as to authorize a proceeding for a partition under
the act. Ihid.
14. In a petition filed in a court of law for ]')artition of land,
where the defendant denies tiie tenancy in common by a plea of
" Bt)le seizin in himself," the court of law will itself try the ques-
tion of title thus raised, as an action of ejectment need not be
brought except when it is ordered by a court of equity, when the
title is disputed in a proceeding for partition in that court. Pur-
vis v. Wilson, 5 Jones, 22.
15. Where, on a petition for tlie partition of slaves, the county
court ordered that ])artition sliould be made in certain proportion,
and appointed commissioners to make it accordingly, and on
appeal to the superior court, the order was lo versed, and the
^42 PAETITION— PARTNERSHIP— I.
division directed to be made in a different proportion, it was held
that the superior court was not in possession of the whole case
by the appeal, and that a procedendo to the county court was
proper. MUlsaps v. McLean, 1 Winst., 80.
See )Coutempt, 9.) (Estoppel— By matter of record, 2-3-4-,^
-10-15-16.) (Evidence— Parol evidence, when admissible or
not, 49.) (Evidence— Ilecords of courts; the proof and effect of
them, 21-22-23.) (Tenants in common, 3-17-30.)
PARTNERSHTP.
L What constitutes a partnership and
its effect upon tlie partners and
II. Of the dissohilion of a partnership,
III. Of the sale and purchase of partner'
others. ship effects.
I. WHAT CONSTITUTES A PARTNERSHIP, AND ITS EFFECTS UPON THE
PARTNERS AND OTHERS.
1. General reputation is not sufficient to charge a particular
person as a partner ; there must be some confession of his, or
some overt act to prove it. Hunt v. Jucks^ 1 Hay., 173, (199.;
2. If an assignor and assignee be members of the same firm,
and the paper payable to the assignor is expressed on its face to
be for a debt due to the firm, a payment to any member of the
firm will be a good payment against either the assignor or
assignee. Black v. Blrd^ 1 Hay., 273, (315.)
3. One partner may release his interest by endorsement on a
partnership note to his co-partner, so as to enable the latter to
sue on the note in his own name. Siieed v. Mitchell, 1 Hay ,
289, (334.)
4. One partner may bind the |irmby a bond under seal, signed
by himself in the name of himself and his co-partner. Walkf^r
v. Dickermn, 2 Hay., 23, (178.) Overruled, see Anonymous, 2
Hay., 99, (2G0,) S. C. Tay., 113, (67.)
5. One partner cannot bind another by deed or bond, unless he
cither has an express power to do so under seal, or the other be
present and assent to the act. But this assent may be implied
by circumstances, and, when implied, has the same effect as the
most express assent. Person v. Carter^ 3 Murph., 321.
6. If the partner who has not executed the bond, not only
recognizes it as the bond of the- firm, but knowingly takes ben-
efit of the effect of the contract, and assents to the extinguish-
ment of a partnership debt by the funds arising therefrom; he
PARTNERSHIP— 1. 943
shall also take the burthen, and do the same tliing as if he had
personally transacted the business. Ibid.
7. In an action of assumpsit against a carrier for damage to
goods, a dormant partner need not join. Willxs v. Clark, I
Dev., 178.
8. An agreement between the owner of a vessel and the cap-
tain that each party shoidd pay certain expenses and divide the
freight, with a power to the captain to invest it on joint account,
constitutes a co-partnership. (Jox v. Delano, o Dev., 89.
9. One who receives a portion of the protits, as his property, is
a partner ; but it is otherwise if the amount of profits is referred
to only to ascertain the amount of a debt due him. Ihid.
10. On an attachment against one partner for his separate
debt, only the separate property of that partner can be seized,
the partnership effects cannot be taken. Jariyis v. Hytr, 4 Dev.,
367.
11. Partners are joint tenants of their debts and merchandize,
but the jus accresccndi only holds to e*nable the surviving part-
tier to get in the debts and settle the affairs of the firm. Ihid.
12. Where a partner executed a bond for goods sold to the
firm, in the name of the firm, and, upon being informed it did
not bind his partners, took it back, and with the consent of the
obligee removed the seal and re-delivered it with the intent to
bind the company, it is effectual as their promissory note. Hc/r-
ton V. Clrild, 4 Dev., 460.
13. The simple contract debt of a partnership is not merged
by the several bond of one partner. Ihid.
14. If one partner borrow m(mey upon his own credit, and
gives his own separate security and obligation for the amount,
tfie other partners will not be responsible for it, although it was
applied to the use of the firm. Willis v. Bill, 2 Dev. and Bat.,
231.
15. A partnership security, taken for the debt of one of the
partners, without evidence of the assent of the others, is void at
lav/. Weexl v. BicJiardson, 2 Dev. and Bat., 535.
16. A resposibihty incurred upon a request made by one pro-
fosstdlij in behalf of himself and his co-partner, in relation to
their common business, but in truth for his individual benefit, is.
in law, incurred at the request of both. Hence, where a person
became surety to a bond, given to sectn-e money borrowed by
one partner professedly for the firm, and so understood by the
lender and the surety, but in truth for the individual use of the
Ijorrower, it ivas held, that though the creditor could not recover
the mfmey from the firm, for want of authority in the partner
to bind the firm by deed, yet the surety upon paying the l)ond
even voluntarily and without suit, might recover the amount
from the firm. Wharton v. Woodhitrn, 4 Dev. and Bat. 507.
17. Although one partner cannot bind his co-partner by deed,
944 PARTNERSHIP— I.
for a loan effected in the name of the firm, unless he have ex-
press authorty by deed for that purpose ; yet in equity, if it can
be shown that the loan was in behalf of both the partners, and
that the security was by the contract intended to be one binding
both the partners, but through mistake had been so executed as
to bind one only, it seems that the creditor may have relief
against both. Ibid.
IS. If one of two partners purchase goods ostensibly for the
partnership concern, but in truth for himself, or borrow money
for the firm but misapply it, the firm is bound. Ibid.
19. An agreement between two persons to carry on a trade
upon the terms that one of them is to contribute his labor and
the other to furnish all the materials necessary for the business,
and to supply the laborer with provisions for himself and his
family; and that out of the profits of the business, the materials
and ]}rovisions are first to be paid for, and then the balance of
the profits, if any, to be eqimlly divided between the parties,
constitutes them pai'tnei's,* and renders the laborer a necessary
party in a suit brouglit for work and labor done in the cause of
the business, although previous to bringing the suit, the parties
may have dissolved the partnership, and separated before enough
of profits were realized to pay for the materials and provisions;
and the laborer may have left indebted to the other for the pro-
visions furnished to his family. Holt v. liernodJe, 1 Ired., 199.
20. It is fraiululent to receive from one partner, for his own
separate debt, the security of the firm, unless he has authority
from the other partner to that effect, or unless the creditor has
reasonable and probable cause, from the conduct of the firm, to
believe that such authority has been given. 3IiU(r v. liichard-
son, 2 Ired., 250.
21. One partner cannot bind his co-partner by a contract, un-
less it is in some way connected with the partnership business,
or unless the act be adopted and recognized by the co-partner,
or unless it be a bill or the endorsement of a note, which the
party takiiig it had good reason tt) believe was authorized by the
firm. L(»tg v. Carter, 3 Ii'ed., 238.
22. Before one partner, or his representative, can sue another
partner at law, the settlement of the firm must be complete and
a balance struck. Grahcon v. Bolt, 3 Ired., 300.
23. Where a vendor, before he sells to a partner, has notice
that there is a partnership, but that each partner is to be liable
only for his own purchases, the vendor caniiot look to the part-
nership for payment, but can have recourse only against the
partner purchasing. r>ut Avhere the vendor is informed that
there is no partnership existing, he may, upon discovering the
partnership, make all the partners responsible for goods which
lie has sold to any one, and which have been carried into the
co-partnership concern. Baxter v. Clarli, 4 Ired., 127.
PAETNERSHIP— I. 945
24. Oiie partrer made an advance of $808 to the firm, and
took a memorandum therefor in the shape of a note signed by
the other partner and payable to the first. Afterwards the firrn
was dissolved, and no actual account of the partnership being
taken, the partner, who had made this advance, agreed to take a
certain amount as his share, and the other partner was to take all
the remainder of the effects of the firm, and also "to pay all the
debts of the firm." It wan held that, by this settlement, the part-
ner Avho made the advance w^as precluded from claiming the sum
advanced as one of " the debts of the firm." Patterson v. 3Iar-
tin, 6 Ired., 111.
25. A contract was made with two partners for the keeping of
certain horses. Afterwards one of the partners died and the
survivor gave his note for the amount due on the contract, which,
not being paid, was tendered back to the surviving partner:
and it icas held that the original cause of action was not merged.
and tliat suit might be brought against the representative ot the
deceased partner to recover damages for the breach of the con-
tract. Jlebane v. Spencer, 6 Ired., 423.
26. Where a boy was bound by his father as an apprentice to
a copartnership, to be taught a mechanical trade, and the father
took away the boy before his time had expired, and soon after-
wards the copartnership was dissolved, the period of apprentice-
ship being still unexpired, it ivas heldhj a majority of the court
(RuFFiN, C. J. caV^e??f/e7^i'e) that the persons comj^osing the copart-
nership could only recover damages tor the loss of the boy's
services during the time the copartnership continued, and not
afterwards. Watt v. Gilmer, 6 Ired., 450.
27. If one partner purchase goods, ostensibly for the firm, but
in truth for himself, the firm is bound in the same manner it
would be if the partner had borrowed money for the firm and
misapplied it. Dickson v. Alexander, 7 Ired., 4.
28. Where two partners entered into a covenant that one of
them should receive a salary for managing the business, it ivas
held that the salary must be paid out of the partnership funds.
Shaver v. Upton, 7 Ired., 458.
2y. Where a partnership was about to be formed, and one,
who was to be a member, purchased a chattel, whioh was after-
wards used by the firm, and agreed by them to be taken from
liim upon his retiring from the business, and the note he gave
for the chattel was, in consequence of this agreement, surren-
dered to him, it icas held tliat the other partners were bound to
pay tlie original seller. Shaver v. Adams, lO Ired., 13.
30. The declaration of a partner, after the purchase of an ar-
ticle, that he had purchased it for and on account of the firm, is
not of itself sufficient evidence to make his co-partners liable
White V. Gibson, 11 Ired., 283.
31. A promissory not( , given by one of the partners of a firm
18*
946 PAETiN"ERSHlP-l.
in the partnership name, binds all the partners, unless the per-^
son who takes it knows, or has reason to believe, that the part-*
ner who made it was improperly using- his authority for his own
benefit, to the prejudice of the other partners. Ahpt v. Miller^ 5
■Jones, 33.
32. Where a new partner came into a firm, and the same bu-
siness was carried on at the same place as by the old firm, and
one of the members of the new firm gave a promissory note in
the name of the new firm, to secure a debt due by the old to one
of the workmen, who continued in the employment of the new
as he had been in that of the old firm, and which note was regularly
entered on the books of the new firm, if idcis ]ield, that the onus of
proving tliat the note was given in bad fliith, and that the payee
knew, or had reason to believe it, rested upon the defendant.
Ibkl,
33. If one partner execute a bond in the name of the firm, and
purporting to be the obligation of the firm, it will not bind the
firm if the partner had no authority under seal to execute it, nor
will it bind the partner who signed and sealed it, because he did
not seal and deliver it as his own act and deed. Sellers V-,
■Streator, 5 Jones, 261.
34. Where one partner uses the effects of the firm in the pay-
ment of his private debt, which is assented to at tlie time, or
subsequently agreed to, by the other partner, it will bind the
firm and prevent the recovery by them of the effects thus used.
Carter v. Beeman, 6 Jones, 44.
35. Where it appeared that each of the partners of a firm was
in the habit of using the debts of the firm in satisfaction of his
private debts, and entries of such dealings were duly made upon
books of the firm, it ivas held, that in an action by the firm for
the price of goods thus disposed of, this habitual mode of deal-
ing was proper evidence to repel the existence of fraud in such
disposition, and to create a bar to the recovery of such goods.
So, the payment of a debt of the firm subsequently created, to
the defendant, by the complaining partner, may be received as
evidence to disprove fraud in the other partner. IJnd.
3(5. A bond made by one of the partners of a firm, as alleged,
for goods sold and delivered to the firm, may, if the sale and
delivery be otherwise proved, be evidence of the time of pay-
ment, or of the amount, as any other admission of one of the
partners would, be, but such bond is not proof, per se, of the con-
sideration, so as to entitle the plaintiff to recover against the
other partner for goods sold and delivered to the firm. Frone-
harger v. Henry, 6 Jones, 548.
37. Where, upon the face of an instrument, it appeared that
one signed, sealed and delivered it, in order to bind the firm of
which he was a member, and not as his own individual bond, ^Y
PAPtTNERSHIP— I-II. 947
was held that it was not liis individual bond, even thongh the
firm was not bound by it. Fislar v. Pender, 7 Jones, 48o.
See (Executors and Adtninistrator.s — Of their liabihty to credi-
tors, &Q., 108.) (Joint Obligations, 1-6.) (Judgment— Of the
efiect of a judgment, 27.) (Partition, 12-13.) (Payment, 6.)
(Release, 5.) (Retailer of spirituous liquors, 6.) (Set" Off, 5-24-
27.) (Trespass—Of trespass quaredausumfregit^ol.) (Tenants
in common, 25.)
If. OF THE DISSOLrTIO^r OP A jPARTKERSHIP.
1. The death of a partner dissolves the partnership, and a
clerk or agent wlio had been appointed by the company cannot,
after such dissolution, do any act to aflect the interest of the
•company, such as to receive payments, &c. McNmiqhton y.
Moore, 1 Hay., 1«), (217.)
2. Where a partnership is dissolved and a receiver appointed,
a payment of a partnership debt to one of the firm, by a debtor
ha^dng knowledge of the facts> is void, and the surviving partner
may recover the debt. Manning v. Brickell^ 2 Hay., 133, (301.)
3. The representative of a deceased partner cannot be sued
while there is a surviving partner. Bure/ici/n v. Hostler, Tav.,
124, (75.) S. a 2 Hay., 104, (2(34.) (Altered, see Rev. Code,
ch. 31, sec^ 85.)
4. Although the admii^sions of one partner, made after the
dissolution of the partiiership, may be used to repel the statute
of limitation, and the like, yet this is confined to cases where the
partnership debt is proved aliunde. Such admissions are incom-
petent to establish the debt originally as one due by the partner-
ship. Willis v. HdJ, 2 Dev. and Bat., 231. (Such admissions
will now repel the statute as against himself only. Rev. Code,
ch. 65, sec. 'li.)
5. When a co-partnersliip is dissolved, notice of the dissolution
should be given to tliose who were in tlie habit of dealing with
the firm, and to others, either by advertisement in a public ga-
zette, or otherwise. Walton v. Tomlin, 1 Ired., 593.
(). Where one ofitwo partners in a firm retires from it, and as-
signs all his interest in the store accounts to the other, who af-
terwards dies, suits to recover the debts must be brouglit in the
name of the surviving partner, and not in that of the personal
representative of the deceased one, to wdiom they had been as-
signed. Felton V. lleid, 7 Jones, 269.
7. Where a partnership has had continuous dealings with a
distant correspondent for some time, actual notice of its dissolu-
tion must be given to such correspondent, to prevent a lialiility
of all the members of the firm for subsequent dealings carried on
by one of the partners in the name of the firm, though without
948 PARTNERSHIP— II-III.
the knowledge or consent of the other late partners. ScJiieffelin
V. Stevens, 1 Winst., 106.
8. Publication of such notice in a local news-paper in this State
cannot be regarded as actual notice, or as evidence from which
actual notice may be inferred. Ihid.
See (Limitations — When the statute will, or will not, bar, 20-
54.) (Partnership — What constitutes a partnership, &c., 24-25
-26.)
ni. OF THE SALE AND PURCHASE OF PARTNERSHIP EFFECTS.
1. The purchaser of partnership effects, under a/. /a. against
one co-partner, takes them subject to the accounts ot the co-
jjartnership, and can only claim a share of the surplus after the
paj^ment oi the partnership debts. But the sheriff is not affec-
ted by this equity between the purchaser and the other part-
ners. Tredivell v. Boscoe, 3 Dev., 50.
2. One partner cannot maintain an action of any kind at law
against a person who purchases, from a co-partner, the partner-
ship effects, though such sale was made by the co-partner in
fraud of the partnership rights, and to satisfy his own individ-
ual debt. Wells v. MitcMl, 1 Ired., 484.
3. On a separate judgment against one partner for a partner-
ship debt, only the interest of that partner in any portion of the
partnership property can be sold by execution. Price v. Hunt,
11 Ired., 42.
4. An officer, who has an execution against one of several part-
ners in trade for the individual debt of the partner, may seize the
partnership property and sell the interest of the individual part-
ner therein, without subjecting himself to an action by the other
partners for so doing. McPherson v. Pemherton, 1 Jones, 378.
5. No action at law of any kind can be maintained against a
sheriff for seizing, selling and delivering goods of a partnership
to the purchaser, in obedience to afi. fa. against one of the part-
ners. Vann v. Hassey^ 1 Jones, 381.
6. The purchaser of partnership goods at a sheriff's sale, under
an execution against one of two partners, constitutes him a ten-
ant in common of the goods Avith the other member, and of course
with the assignee of the tirm. But if such purchaser take all
the goods away, and sell them, the assignee may have assump-
sit for the part of the money arising from the sale to which he
is entitled. Latham v. Simmons, 3 Jones, 27.
See (Execution — Lien and priority of executions, 44.)
PATKOL— PAWN— PAYMENT. ,949
PATROL.
1. When the county court does not form rules and regulations
for patrollers, under the act of 1802, and as under that act one
patroller has not a right to inflict a punishment by himself, and
if private persons aid and abet him in doing so, though called
upon, they as well as he are all trespassers. Richardson v. Salter,
N. C. Terra, E. Q^, (505.) (For the law subsequently see Eev. Code,
ch. 83.)
2. Some degree of discretion in the punishment of slaves is
necessarily allowed patrols ; and if, in the exercise of this dis-
cretion, they inflict punishment, they are not liable in an action
to the master, unless their conduct clearly demonstrates malice
against the owner, such as excessive severity, &c. Tate v.
O'Neal, 1 Hawks, 418.
3. In the absence of any special regulations by the county
court, no act of a patroller in the discharge of his official duties
can be valid, unless a majority of the patrollers in the district
be present, and a plurality of these sanction the act. State v.
Hailey, 6 Ired., 11.
4. The oflice of a patroller is both judicial, or quasi judicial, and
executive. Ibid.
5. Ministers of the Gospel residing in an incorporated town
are not exempt from performing the duty of patrol, when
required to so by the proper authorities, according to the cor-
poration ordinances. Elizabeth City v. Kennedy, Busb., 89.
6. Patrols are not protected by their ofiice when they greatly
exceed their authority in beating a slave. State v. Atkinson^ 6
•Jones, 65.
PAWN.
See (Pledge.)
PAYMENT.
1. A creditor may, at his option, apply a payment at law to a
bond or account due from his debtor, if 'the debtor fail to do it
Hamilton v. Benbury, 2 Hay., 385, (586.)
950 PAYIMENT.
2. Where money comes into the hands of a creditor rightfully
and by his debtor's consent, for no definite and particnlar pur-
pose, and the creditor has but one demand, it operates, when
sureties are concerned, as a discharge ipso facto of the oblig-ation.
Manner v. 31c3Iurray, 1 Dev., 218.
3. A payment differs from a set off only in this, that a pay-
ment is by the consent of parties, either expressed or impHed,
appropriated to tlie discharge of a debt. McDowell v. T'ate, 1
Dev. 24!J.
4. An account signed by one, acknowledging the receipt of
articles from another, whose bond the first holds for a larger
amount, should be left to the jury as evidence of a payment on
the bond. Ibid.
5. Payments made on account of a debt are to be first applied
to the interest accrued thereon; and this is a rule where the
interest is given by positive enactment, as Avell as where it is
allowed by the jury in their discretion. Feebles v. Gee, 1 Dev..
341.
6. Eeceiving the promissory note of one partner in payment
of an open account against a firm, and delivering up the account
in writing, does not of itself discharge the original demand.
Wilson V. Jennings, 4 Dev., 90.
7. Where a dealer with a baidc had a balance to his credit
upon a general cash account, and died indebted to it by judg-
ment and upon simple contract, the bank has a right, indepen-
dent of the statute of set off, to apply the balance to the latter
debt. State Bank v. Armstiwig, 4 Dev. 519.
8. Where one is a bailiff or receiver of another, there is, du-
ring the continuance of that relation, and until an accounting
between them as to their transactions embraced, in the account,
no legal presumption, as an arbitrary and settled rule of law,
that the receiver had paid to the principal all the monies, or any
particular sura, before received for him. State Bank v. Locke^
4 Dev., 529.
9. If, in the case of a previous debt, the creditor by agreement
with the debtor accept the note of a third person, payable to
himself, it is presumed to be in satisfaction and extinguishment
of the original consideration. Much more, when the seller agrees
with the vendee at the time of the sale, to take, and he does then
take, for the price, the note of such third person. Symington v.
3lGLm, 1 Dev. and Bat., 291.
10. If a debtor have conveyed property to 'his creditor in trust
to sell and satisfy the debt, and the latter sell the property and
hold the proceeds, it is a payment of the debt. Disnmkes v.
Wright, 3 Dev. and Bat., 78.
11, A receipt, not under seal, is not conclusive evidence of
payment, but may be explained by parol. Lowe v. JVeatJierhj„
4 Dev. and Bat, 212.
PAYMENT. 951
12. A payment in counterfeit bank notes is a nullity, and the
party receiving them, as the price of articles sold, may, if there
be no receipt and acquittance under seal, recover upon the origi-
nal consideration, although both parties were ignorant at the
time that the notes were counterfeit. Ihid.
13. "Where a debtor by note to a bank paid the full amount of
the note to the cashier, declaring that the payment was intended
to discharge that debt, the cashier was bound to make the ap-
plication accordingly, and could not apply any part of the sum
so paid to the payment of damages on a protested bill, which he
alleged to be due to the bank from the debtor. Buwjou v.
Latham, 5 Ired,, 551.
14 The act of 1826, making the lapse of ten years a presump-
tion of payment, applies to simple contracts as well as to sealed
instruments. SjjriiiU v. Davenport, 5 Ired., 663. (See Rev. Code,
ch. ^ob, sec. 18.)
15. To make specific articles a payment, they must be received
as a payment, or by a subsequent agreement "^ they must be ap-
plied as a payment. Lode v. Andres, 7 Ired., 159.
16. When the law is called upon to make the application of
payments by a debtor to a creditor, who has various demands
against him, and no application has been made by the parties,
the application can only embrace debts or demands for certain
fiums, or such as can be made certain, as accounts for work or
labor, or for goods sold or the like, but not uncertain and unli-
quidated damages. Ramsour v. Thomas, 10 Ired., 165.
17. There is another rule in this application by the law, that
it is to be first made to the debt for which the security is the
most precarious. Ihid.
18. The plaintifis placed in the hands of A a judgment to
collect against B, and afterwards A paid the amount of it to
the plaintifis, saying at the same time that he ]iad not recovered
any part of the jiulgment from B, and the pUiintifFs told him
that he might take and use it as his own; it was held, that if
this was a payment by A, without tlie authority of B, it was
an_ ofticious payment by A, which could not protect B from -a
suit against him on the judgment; and it tvas held further, that
although the statement of A, wdiich was introduced in evidence,
was in writing, yet it was proper to leave it to the jury, whether
A paid the judgment as agent for B, or whether the transac-
tion Avas not a purchase of the judgement by A, from the i )lain-
tifis. Nnll V. 3Ioore, 10 Ired., 324.
19. AVhere a constable, in whose hands a judgment liad been
placed for collection, received in payment sundry notes of hand,
and afterwards paid over the amount in money to the plaintiff" in
the judgment: ii was held, that the constable could not after-
wards recover, in the name of the plaintifi', the amount of the
said judgment from the defendant in the judgment, although he
952 PAYMENT.
could show that the notes received from the defendant were on
insolvent persons and fraudulently passed to him. Rogers v.
Nutdl, 10 I red., Ul.
20. It is the rule in this State to apply payments to the debt
for which the security is most precarious, when no application of
the money is made by the party paying. State v. Thomas, H
Ired., 251.
21. Though, by statute, payment of a bond may now be
pleaded, and any thing ag-reed to be received in satisfaction will
amount to payment, if the agreement be executed so that the
thing becomes at once tlie property of the obligee, yet it is other-
wise of a verbal agreement to deliver at a future day, in which
case the rule of the common law, eo ligamine, quo ligatur, d-c,
applies. Rhodes v. Chesson, Busb., 336.
22. An order for goods, not accepted, is no payment for prop-
erty sold ; and the owner may recover on the common count.
Nissen v. Tucl^er, 1 Jones, 176.
23. If a debtor hands money to a third person, who promises
to hand it to the creditor, the money does not vest in the creditor
so as to make it his, and thereby discharge the debt, until he is
notified of the transaction, and agrees to adopt the act of the
third person. Strayhorn v. Wehh, 2 Jones, 199.
24. Where it was agreed between the president of a plank
road company and a subscriber to the stock, that the latter might
pay for his subscription, which had been previously made, in
work to be done on the road, the company furnishing the mate-
rials wherewith the work was to be done, which they failed to
do, in consequence of which the defendant also failed to do the
work, it toas held that there was neither a payment nor an accord
and satisfaction shown by the defendant, and that the company
was entitled to recover. Salisbury and TaylorsviUe Flank Road
Company v. Allison, 5 Jones, 311.
25. Where a person sold property and took a note tor the price,
and there was a lien upon the property at the time of the sale,
and the purchaser paid ofi" the amount of such lien, it was held
that the law presumed the payment to have been made at the
request of the vendor, and that it was, therefore, in effect a pay-
ment of the note held by him. Crowell v. Simpson, 7 Jones, 285.
See (Agent and Principal — Factors, 1-2.) (Bonds — Payment
or satisfaction of bonds.) (Executors and Administrators— Letters-
testamentary and letters of administrators, 36.) (Executors and
Administrators — Of sales by executors and administrators, 9-17
20.) (Husband and Wife — Husband's interest in his wife's
estate, &c., 15-16.) (Judgment — Of the satisfaction of judg-
ments.) (Usury — Of the action for the penalty, 15.)
PENAL STATUTES. 953
PENAL STATUTES.
1. No penal statute can be construed by implication, or other-
M'ise than by the express letter. State v. Knight, 2 Hay., 109,
(2G7,) S. C. tay., 65, C44.)
. 2. The repeal of an act giving a forfeiture foi"^n offence is a
repeal for all forfeitures incurred under the act repealed, unless
there be a special exception to the contrary. And if an act be
repealed, pending a suit for a forfeiture under it, the repeal^may
still be pleaded in bar. Governor v. Hoivard, 1 Murph., 465. _
3. Penal statutes are to be construed strictly. The act which
imposed a forfeiture upon any justice accepting the office of
deputy clerk, and upon any deputy clerk accepting the office ot
justice of the peace, lield not to apply to a person who was both
deputy clerk and justice before the passage of the act, and who
continued to act in both capacities afterwards. Wardens of
Granville v. Sneed, 1 Murph., 485. (SeePtev. Code, ch. 62, sec. 5.)
4. In a penal statute the word "or" shall never be constraed
" and," so as to make it more penal. Stcde v. Kearney, 1 Hawks,
53.
5. In an action on a penal statute, it is necessary in the dec-
laration or warrant to name the statute, or recite its provisions,
or refer to it in some way, as by the general terms, " contrary to
the statute in such case made and provided," so as to give the
party notice of the law, with the violation of which he is charged.
Scroter v. Harrington, 1 Hawks, 192. S. P., Worl-e v. Bijers, 3
Hawks, 228. Buncombe Turnpike Company y. McCarson, 1 Dev.
and Bat., 306.
6. The certificate of the justice required by the act of 1796, "to
puiysh persons for removing debtors," &c., was intended solely
for the benefit of the person who removed the debtor, it was on-
ly one mode of iwoof that the debtor had duly advertised; ^eZc?,
therefore, that it might have been obtained at any time either
before, or after the removal, and might have been dispensed with
altogether, if tlie party could make the same proof by other tes-
timony. Mann v.McVay, 1 Hawks, 226. (The law on this sub-
ject is altered. See Rev. Code, ch. 50, sec. 14.)
7. Where a judgment is recovered in the name of the wardens
of the poor, by a relator, for a penalty, to one half of which he is
by law entitled, he may release one half of the judgment, that
being his own share, but he cannot release the other half, which
belongs to the wardens. Wardens of the Poor v. Cope, 2 Ired.,
44.
8. The overseer of a road may recover in his own name the
penalty for hands not working on the pubhc road. He is not
bound nor required to sue " for himself and the county," since
the fine is to be applied by the overseer to the keeping up of the
954 PENAL STATUTES.
road Duffey v, Averitt, 5 Ired., 455. (See Kev. Code, cb. 101,.
sec. 9.)
9. Judgment on a warrant, by an overseer of a road, for $30
for thirty liands not working on a public road, when the jury
find only $28, will not be arrested. As there are no declarations
on a warrant, the court will intend that there were thirty counts
for $1 each per Imnd, and then there may be judgment on the
twenty-eight counts proved, and not on the other two. Ihid.
10. l\\ an action upon a statute to recover a penalty, the plain
tiff must set forth, in his declaration, every fact which is necessa-
ry to inform the court that his case is within the statute. WrigJd
V. Wheder, 8 Ired., 184.
11. Penal statutes cannot be extended by equitable construc-
tion beyond the plain import of their language. Smitlnvick v.
Williams, 8 Ired., 268.
12. When a covenous action is brought for a penalty^ and the
recovery in it is pleaded to a subsequent bona fide action for the
same penalty, the plaintiff in the i-econd action may reply that
the judgment in the first was covenous. Burnett v. Davidson,'
10 Ired., 94.
13. Under the statute prohibiting the sale of liquor to a slave,
which gives a penalty ot $100 against the offender, and declares
that it shall " be recovered by warrant before any justice of the
peace, and applied one half to the use of the person suing lor the
same, and the other half to the use of the poor of the county,"
any person may sue qui fam for the penalty as informer, dlcliae
V. Keller, 10 Ired., 398. (The offence of unlawful selling to slaves
subsequently onlv indictable as a misdemeanor. See Kev.
Code, eh. 34, secs.''83-84-85-86-8 7-88 and 89.)
14. A common informer cannot recover a penalty unless he
sue within the period allowed by the act imposing the penalty.
As where a penalty was imposed on persons fishing in the Roa-
noke river at certain times, and any person might sue for the
same, provided he did so within one month from the forfeiture,
and if no suit was brought within that period, the law officer of the
State Avas dn-ected to sue for the use of the State, (act of 1827,
ch. 54,) if teas held that, after the expiration of the month, the
right of the common informer was gone. Fagan v. Armistead,
11 Ired., 433.
15. A warrant for a penalty, incurred by violating an ordinance
of a town, must set forth the act of assembly by virtue of which
the ordinance was passed, and an omission to do so will furnish
a gromid for an arrest of the judgment. Comnmsioners of Wasli-
nytoji V. Frank, 1 Jones, 43(j.
16. The action for the penalty for fornication imder the act,
Eev. Stat., ch. 119, sec. 7, must be brought within ten days after
the commission of the ofience. Curtis v. MiUer, 1 Jones, 553.
PEXAL STATUTES— PEXSION. 955
(The section in question is omitted in the Eev. Code. See eh
115.)
n. The action against a guardian for the penalty of $200,
given by the Rev. Code, ch. 54, sec. 2G, in connection with ch.
46,.. sec. 20, for hiring the property of his ward privately, is not
to be brought in the name of the State, but is properly 'brought
in the name of the person who may sue for the same. Norman
V. Bunhar, 8 Jones, 317. (See Rev. Code, chs. 47 and 48.)
See (Debt— Of the verdict in the action of debt, 4-5.) (Hus-
band AVife— :\Iarriage, 17.) (Justices of the Peace— Of justices'
warrants in civil cases, 5-7-11-13.) (Jusiices of the Peace— Of
justices' warrants in criminal proceedings, 10-11.) (Abatement
—By the death of parties, 2-4-12-13.) (Pleading— Of the writ
and declaration, G-7-24-2G-27-29.)
PENSrOX
1. Where the plaintiff declared against the defendant for a
breach of the following agreement: ""R. H. M. has promised to
pj-ocure for my mother a pension from the government of the U.
S., supposed to be due her as the widow of Lieut. C. G., and in
the event of his doing so, 1 promise and oblige myself to give
the said R. H. M. one-half the money due her on account of the
said pension;" It teas held that this agreement referred to a
pension to which the widow was then entitled, or supposed to
be entitled, and not to a pension to which she became entitled
under an act of Congress subsequently passed; and further, that
although the sales of pensions are by law prohibited, yet the
court could not infer from this agreement, (though a jury might,)
that it was made by the son as the agent of his mother, and,
therefore, it did not transfer any title to any portion of the pen-
sion, and was not, on that account, invalid. And it ims held,
also, that upon a count for work and labor A could not recover
from B, because his services did not enure to the benefit of B,
and, therefore, the law would not imply a promise. 3Ioslni v.
Hunter, 'd Ired., 119.
2. An agreement between the widow of a soldier of the revo-
lution, entitled to a pension under the act of Congress of 1848,
ch. 120, and an agent, that the latter should receive a certain
part of the pension money for his services in obtaining it, is
void, and money received by the agent under such an agreement
may be recovered by the pensioner in an action of assumpsit.
Poivell V. Jennings, 3 Jones, 547.
3. \Vhere a sub-agent receive from the general government
a pension, under an agreement with the pensioner, that one-half
of the amount was to be paid to the principal agent at Washing-
956 PENSION— PERJUEY.
ton City, and, before any objection or demand on the part of the
pensioner, one-half was paid to his principal by the snb-agent,
it was held, that the amount thus paid could not be recovered by
the pensioner in a suit against the sub-agent. Bridgers v. Mc-
Neil, 6 Jones, 311.
PERJURY.
1. The indictment charged that the defendant swore, " that
one G. did not interrupt a constable in driving certain cattle to
G.'s house," the evidence was that the defendant swore "that G.
did not assist in driving the cattle from the officer;" held that
the evidence did not support the charge. State v. Bradley, 1
Hay., 403, (464) and 463, (533.)
2. In order to constitute peijury, the oath must be taken in
some judicial proceeding, and before some person authorized to
administer the oath which is taken. A mere voluntary oath
cannot amount to perjury. State v. IVyatt, 2 Hay., 56, (219.)
3. It is not necessary, in an indictment for perjury, to state
that the person holding the court, before which the false oath
was taken, is a judge of the superior court; such statement be-
ing expressly dispensed with by the latter part of the 3rd section
of the act of 1791. Stafev. Bryson, 1 Car. L. li. 503, (115.) (See
Rev. Code, ch. 35, sec. 16.)
4. Perjury may be committed in answering a question that
has no direct relation to the issue, if asked with a design to
impair the credit of the witness as to those parts of the case
which were material to the issue, particularly if the witness he
cautioned as to his answer. State v Street, 1 Murph., 124.
5. In an indictment for perjury, the style of the court, before
which the perjury is alleged to have been committed, must be
legally set forth. State v. Street, 1 Murph., 156.
6. if an indictment for perjury charge it to have been com-
mitted at certain court, in an issue joined in a certain cause which
came on there to be tried, it cannot be supported if the record
produced shows that no issue wqs joined. State v. Ammonds, 3
Murph., 123.
7. In an indictment for perjury, it is necessary to set forth that
the oath was taken in some judicial proceeding before a compe-
tent tribunal, and upon a point material to the issue depend-
ing; and by the common law it was necessary to set forth the
record of the cause, wherein the alleged perjury is charged to
have been committed, to prove on the trial that there is such a
record by producing it, or a certified copy ol it, and when pro-
PERJURY. 957
(luced, it must agree with that set forth in the indictment, without
a material variation. Ihid.
8. Since tlie act of 1791, it is not necessary to set forth the
record of the cause in the indictment, but if it be recited, the
recital must be correct, or the prosecution must liail. Ihid. (See
Rev. Code, ch. 35, sec. IG.)
9. An indictment for perjury, on a trial in court, is proper
which states that the oath \n as taken before the court, and that
the testimony was thereupon given to the jury; and it will be
sufficient, it it states that a certain person held the court in the
county of R., the said county being also mentioned in the cap-
tion, and afterwards alleges that the oath wa-^ "then and there"
taken, for those words refer to the county and time before men-
tioned. State V. Witheroiv, o Muiph., 153.
10. An indictment, which charged that the defendant falsely,
&c., swore to certain facts before the grand jury, but did not
charge how, or in what way, the facts sworn to agreed with the
allegations in the indictment, nor that they were material to or
connected with the question then under consideration, camiot
be sustained. State v. Dodct, 3 Murph., 226.
11. When a witness comes forward and is sworn with uplifted
hands, he may be convicted of perjury, though he was not con-
scientiously scrupulous about being sworn on the Holy Gospel.
State V. JVhisenhurst, 2 Hawks, 458.
12. Perjury may be committed in swearing falsely to a collat-
eral matter, with intent to prop the testimony on some other
point, but such collateral matter must be material to the point
in dispute ; for if it be to a point, the existence or non-existence
of which cannot affect the question in dispute, it does not tend
to prevent the due administration of justice, and therefore is not
perjury. Studdard v. Linville, 3 Hawks, 474.
13. Perjm-y cannot be committed by taking a false oath in a
case before a*^ justice of the peace, of which he has no jurisdic-
tion. State v! Alexander, 4 Hawks, 182.
14. Perjury is properly assigned in an oath taken before a
court of competent jurisdiction, although the witness was irre-
gularly sworn. State v. Molier, 1 Dev., 263.
15. In an indictment for perjury, it is sufficient to charge gen-
erally that the false oath was material to the trial of the issue
upon which it was taken ; and it is not necessary to show parti-
cularly how it was necessary. Sfafev. Mumford, 1 Dev., 519.
16. "a general averment falsifying the testimony given is not
sufficient; every fact falsely deposed to must be distinctly nega-
tived. Ibid.
17. An indictment for perjury, which sets forth that a warrant
was tried in which A demanded of B twenty dollars for corn,
&c. is sufficiently proved by producing a warrant between those
958 PERJURY.
parties " for debt due hf account," without specifying the parti-
culars of the account. State v. Alexander, 2 Dev., 470.
18. An indictment for perjury charging- that tlie defendant
*' being a wicked and evil person, and unlawfully and unjustly
contriving, &c., deposed," &c., and concluding that the defend*
ant " of his wicked and corrupt mind, did commit willful and
corrupt perjury," is defective even at common law, for not alleg-
ing that the defendant wiJlfuUt/ and corruptly swore falsely. —
State V. Garland, 3 Dev., 114.
19. Where the defendant is indicted for a perjury, committed
on the trial of an issue in a former indictnient, the bill must set
forth the finding of the former indictment in the proper court of
the proper county, and should also set forth that indictment, or
so much of it as to show that it charged an offence committed in
that county, and of which said court had cognizance, and also
the traverse or plea of the defendant in that indictment, where-
on the issue was joined; and a judgment, on an indictment de-
fective in these particulars, must be arrested. State v. GalU-
more. 2 Ired., 372. (For what is now necessary to be set forth
in such an indictment, see liev Rev. Code, ch. 35, sec. 1(5.)
20. The act of 1791 was repealed by the Revised Statutes of
183(), and the act of 1811 does not cure such defects, for they are
neither informalities nor refinements within the meaning of that
statute. Ibid. (Sge Rev. Code, ch. 35, sec. 14.) (The act of
1791 was substantially restored by that of 1842, ch. 49. See
Rev. Code, ch. 35, sec. 16.)
21. In an indictment for perjury, it is not necessary to set
forth the pleadings in the former case, in Avhicli the perjury is
alleged to have been comn)itted; the act of 1842 haAung altered
the common law in that respect. State v. Hoijle, G Ired., 1.
22. There is but one statute in this state punishing the crime
of perjury. Rev. Stat., ch. 34, sees. 50 and 52, and, therefore, an
indictment for that crime, Avhich concludes against the form of
the statute, is right. 1 hid. (See Rev. Code, ch. 34, sees. 49 and
51.)
23. When the perjury, on which an indictment is founded, is
alleged to have been committed on the trial of a cause at a spe-
cial term of the superior court, it is not necessary to set forth in
the indictment the order of the judge directing such special term
to be held, nor the appointment by the governor of the particu-
lar judge who is to hold it. Nor is it necessary to prove either
of those facts on the trial. State v. Ledford, 6 Ired., 5.
24. An indictment for perjury must set out the substance and
effect of the testimony in which the perjury is assigned. State
V. Groves, Busb., 402.
25. Where an indictment charged the defendant with having
sworn that A purchased a gun of B, and his testimony, as proved
on the trial, was that B, in a conversation with A, asked him if
PERJURY-^PILOTS-PLEADING-I
959
lie had brought home his gun, to which A replied " he had for-
got it," and said, "I will keep the gun and allow $15 fur it on
what you owe me," to which B replied " enough said," it ima
held that the proof did not support the charge ; for B's answer did
not necessarily import an assent to the proposal of A, but was
susceptible, under the circumstances, of another interpretation.
Ibid.
See (Indictment — In what case an indictment will lie, 2.) (In-
dictment— Form and matters relating thereto, 3-22.) (Indict-
ment— Of the trial, verdict and judgment, 15.) (Indictment —
Plea of former acquittal or conviction, 2.) (Evidence — In crim-
inal proceedings and indictments, 7-18^31--79.)
PILOTS.
1. According to the several acts of Assembly upon the subject
of " pilots," where a pilot tenders his services to a vessel of over
one hundred and twenty tons burden, bound in over the bar at
Ocracocke, before she gets to tire bar, the commander is bound
to pay the usual rates of pilotage, though he refuses to receive
such pilot on board his vessel, and though the weather was fair,
and though it was in the month of August, and though the
defendant was fully competent to bring in his vessel with safety-
Gerrisli v. Johnson, 1 Jones, 335. (See Rev. Code, ch. 85, sec
34, and following.)
PLEADING.
t. Of the joinder of parties.
II. Of the joinder of action.s.
III. Ot tlie writ and declaration.
IV. Ot pleas, replications and demurrers.
V. Of repleader.
Vl. Of a variance between the allega-
tion and proof.
VII. Of demurring of the jiarol.
A^III. What defects may he cured by plead-
ing over.
IX. Of 'scire facias and the pleadings
thereon.
X. Of the verdict atid judgmenv.
XI. Of writs of error.
1. OF THE JOtNDER OP PARTIES.
1. In actions of contract, the parties must all join in the action,
or advantage may be taken of the non-joinder on the general
960 PLEADING— I— 11.
issue; but in actions of tort., the non-joinder must be pleaded in
abatement. Weave v. Burge, 10 Ired., 1(39, S. P. Richardson v.
Jones., 1 Ired., 296.
2. Tenants in common may, in general, sue separately tor
trespasses on real estate, yet they may also join in such action,
in respect to the injury being to their joint possession. Camp
V. Hohuesley, 11 Ired., 211.
3. Where one joint owner of a slave, having him in his posses-
sion, agreed to take off his handcuffs upon the request of another,
upon his agreeing to pay him $100 m case the slave should
escape, it tvas held that the other joint owner was not a necessary
party to a suit to recover the money for the escape of tne slave.
Weatherly v. 3IiUer, 2 Jones, 166.
4. One of two joint purchasers cannot, in an action for a deceit
in the sale of the property to them, release or assign his interest
to the other, so as to enable him to sue alone. Scott v. Brown,
'.\ Jones, 541.
5. In actions of tort arising ex contractu., a non-joinder of a
party plaintifl" may be taken advantage of on the trial upon the
plea of the general issue, or by a motion in arrest of judgment,
or by writ of error, llnd.
6. In an action on the case, by two joint owners of a vessel
against a captain for negligence and delay in making a voyage,
it 2vc(S held that, upon the death of one of them, the right of ac-
tion survived to the otlier, and that it was a misjoinder to bring-
in the executor of the deceased joint owner. And, it was held
further, thai;, as the misjoinder appeared on the record, the proper
mode of taking advantage ol it was by demurrer, motion in ar-
rest, or writ of erroi', and not by a motion for a non-sint on the
trial. Bond, v. Hilton, 6 Jones, 180.
7. The allegation of a contract made with five persons, who
are plaintiffs, is not supported by proof of a contract made with
three, and the variance is a ground for nonsuit at the trial, on the
general issue. Mm ray w lJavi.% 6 Jones, 341,
8. Though a covenant be with two or more jointly, yet if the
interest and cause of action of the covenantees be several, tlie
covenant shall be taken to be several, and each of the covenantes
may bring an action for his particular damage, notwithstanding
that tlie words of the covenant are joint. Little v. Hobhs, 8
Jones, 179.
See (Abatement — Plea in abatement for what causes to be
put in, 6.) (Husband and Wife — Of suits by and against hus-
band and wife, 2-3-4-5-10-11-12-13-15-16-17.) (Joint Obli-
gations.)
II. OF THE JOINDER OF ACTIONS.
1. In an action on the case, a count in deceit for knowingly
PLEADING— II-III. 961
misrepresenting the soundness of a chattel, may be joined with
a count for a breach of the warranty of the soundness of the
same chattel. Lassiterv. Ward, 11 Ired., 443.
2. A count for trespass vi et armis to slaves may be joined with
trespass quare dau.svm /regit, in the same declaration. McClees
V. Sike'J, 1 Jones, 310.
3. A count in trespass for willfully killing a horse may be
joined AAith trespass quare dauswn /regit in entering upon the
plaintiff's land; and where no lormal declaration is filed, such
additional count will be understood as having been inserted.
Rippey v. Miller, 1 Jones, 479.
4. A count in case for a deceit in a sale of goods cannot be
joined with one in assumpsit on a warranty of soundness. Cham-
berlain V. Robertson, 7 Jones, 12.
See (Pleading — Of the writ and declaration, 4-9-28.)
ni. OF THE WRIT AND DECLARATION.
1. A writ in debt, "that they answer unto him of a plea of debt
of 1000 dollars," held good on a demurrer to a plea in abatement,
that the writ did not run in the debet and detinet. Guion v. ilfc-
CuUough,2 .Mar., 78, (132.)
2. In slander, words spoken after the time laid in the declar-
ation will not support it. Quaere by Haywood. Witherspoon v.
Isbell, 1 Hay., 12, (17.)
3. Where a special contract is sued on, it should be set forth
precisely as it is ; any variance between it as set forth and the
proof will be fatal. Anonymous, 1 Hay., 488, (562.)
4. A count upon the promise of the intestate may be joined
with one upon the promise of the administrator to pay the debt
of the intestate. WUkings v. Murphy, 2 Hay., 282, (460,) S. P.
Gregory v. Hooker, 1 Hawks, 394.
5. On an appeal from the county to the superior court, the
plaintiff shall not change the declaration filed in the county
court, and if there were no writteii declaration he shall be con-
fined to the grounds of action declared on in the court below.
Davis v. Gib.'ion, Conf. Piep., 102, (233.)
6. In penal actions the charge must be made with precision,
and therefore where the declaratton only alleged by way of
recital, as "that whereas the said defendant having, &c.," it wae
held bad. Harrington v. 3IcFarlnnd, Conf. Rep., 408., (476.)
7. A writ in debt on a penal statute, which called on the de-
fendant "to render to the plaintiff the sum of £50 due under an
act of the gcn(;ral assembly to him, and which from him he
unjustlv detains, itc," is substantially in debet and detinet. Page
V. Farmer, 2 Miirpii., 288, S. C. 1 Car. L. R., 278, (29.)
8. Where one count in a declaration for a libel charged, "that
the defendants coml)ined and contrived to cause it to be believed
19*
962 PLEADING— III
that the plaintiff was a Bot and a common drunkard," and a
second count charged " that the defendants fvirther contriving
and intending as aforesaid," composed, &c., the hbel, &c., and a
verdict was found for the plaintiff on the second count only, it
loasheldWmt the words "further contriving and intending as
aforesaid" referred to the allegations contained in the introduc-
tory part of the first count, as to the intent of the libel, and was
sufficient without repeating the allegation as to such intent,
Frazier v. Felton, 1 Hawks, 231.
9. A count against an executor, charging him upon his promise
as such, may be joined with a count upon a promise of his tes-
tator. Gregory v. Hool-er, 1 Hawks, 394,
10. It is necessary f r a plaintiff to state in his declaration,
not only that he has sustained damage, but also how he has been
damaged. Gardiner v. Sherrod, 2 Hawks, 173.
11. A variance between the writ and declaration, the former
beino" in debt and the latter in assumpsit, is fatal even after ver-
dict Stamps V. Graves, 4 Hawks, 102.
12. A declaration for a libel must undertake to set out the
very words; to give the substance and effect is not sufficient,
and, if on the trial the libel produced does not correspond with
that set out, the plaintiff must fail, since no reason can be as-
sio-ned why he should not be required to prove what he is re-
qiiired to allege. Whitakerv. Freeman, 1 Dev., 271.
13. After the defendant has pleaded to the warrant, so as to
meet the case made by it, the plaintiff" cannot, upon an appeal,
declare in such a manner as to make the plea ineffectual. Doiv-
ney v. Young, 1 Dev., 432.
14. Where a writ was to answer "A, guardian of B," the
words " guardian of B " were /(eld to be but matter of descrip-
tion, and the suit to be the suit of A, and not of the ward ; and
evidence of the ward's title was therefore irrelevant. Bowd v.
Wadsioorth, 2 Dev., 130.
15. In England no advantage can be taken of a variance be-
tween the original writ and the declaration, except upon oyer
of the writ, because the writ issues from another coiirt, and does
not become part of the record until oyer be had of it. But here
the writ, being issued from and returned to the same court, is
part of the record without oijer; hence a variance between the
writ and declaration is fatal even after verdict. Glissonv. Her-
ring, 2 Dev., 156. (Overruled, see West v. Batledge, 4 Dev., 31.)
16. The failure to serve the defendant with a copy of the de-
claration filed in the county court, five days before the first day
of the term, can only be taken advantage of l)y plea in abate-
ment, and not by a mere motion to dismiss. Laverty v. Turner,
4D«}v., 275. . ^
17. A count in a declaration for a malicious and excessive
levy and sale by a constable, which states a seizure and sale by
the officer of "the property," to a greater value than the debt
PLEADING— III 963
to be satisfied, is insufficient ; for " the pro}Derty " may be either
real or personal; if the former, then the plaintiff' sustained no
injury by the acts of the defendant, because neither the levy nor
sale by a constable can divest the owner of land of his title or
disturb his possession ; if the latter, then there is no averment
that it was not an entire thing, or that there were, at the time
of the levy, other goods or chattels of the plaintiff, known to the
defendant, in such dift'erent or distinct parcels or kinds, that the
defendant might have taken a reasonable part thereof, and not
the thing which he did take, and which was of greater value
than the sums to be raised. Hotieycut v. Angel., 4 Dev. and Bat.,
306.
18. In a declaration against a constable for a fraudulent levy
upon the lands of the plaintiff, and a return of tlie same to court,
whereljy au order of sale was obtained, and the land sold by the
sheriff, it is necessary to state an eviction of the plaintiff, or some
disturbance hy the defendant, or by some person dei'iviug title
under the sheriff's sale and conveyance; and the allegation that
the sheriff "made title to the purchaser," without stating that
some person in particular, claiming and getting title by virtue
of the sheriff's deed, turned or kept the plaintiff out of possession,
is insufficient. IIM.
19. Where a bond was made payable to A "as executor,"
with a condition that the obligor would pay a certain sum for
the lease of lauds belonging to the estate of A's testator, and to
return the premises in good repair, it was held that the writ and
declaration might be in the name of A without describing him
as " executor," that word being mere surplusage. JVaddeU v.
3Ioore, 2 Irecl., 261.
20. Where claims put into a constable's hands for collection
belong to a copartnership, all the members of the firm, being in
law the " persons injured," must be relators in an action tor a
breach of the constable's bond in not collecting such claims, not-
withstanding any private arrangement among the partners, as
to the beneficial interest in the proceeds of the claims. State v.
Lir/htfoot, 2 Ired., 306.
21. Where a debt is due to A, and he places it in the hands
of a constable for collection, he is the only person who can main-
tain as relator an action on the official bond of the constable for
breach of duty, notwithstanding he may have afterwards as-
signed his interest in the debt to another person. State v. Dea-
ver, 3 Ired., 56.
22. In a declaration for slander in charging the plaintiff with
perjury, where it is alleged that the plaintiff had been in a cer-
tain suit sworn and examined on oath as a witness, &c., it is not
necessary to state what he testified on such trial. At all events,
such objection comes too late after verdict. WhitaJccr v. Carter,
4 Ired., 461.
964 PLEADING— III.
23. In an action on the case in the nature of a conspiracy,
charging that the defendants combined to injure the planitiff's
credit, it is necessary for the plaintiff to aver ni his declaration
the means by which such injury was intended to be effected.
Setzarv. Wiison,4:lYed.,bOl.
24 A declaration against a minister of the gospel, or a justice,
under the act of 1778, for a penalty in marrying persons who had
not complied with the requirements of the act, must state not
only that they were married without a license, but also that no
certificate ot the pubUcation of banns was produced to the min-
ister or justice; and a mere averment, that there was no license
and that there had been no publication of banns, is not sufficient
to support the declaration. Dml-e v. iMcJIinn, 5 Ired., 639. (See
Kev. Code, ch. G8, sees. 1, 2, 3 and 6.)
25. Where a plaintiff, having two judgmentsagamst the same
defendant, b: ought his action against the sheriff for an escape
and declared on both the judgments, it was held that, though
he could not recover on one, he might on the other judgment.
Lash V. Ziqlar, 5 Ired., 702.
26. Where an action is brought for a penalty imposed by a
statute, or actions are brought founded on rights created by a
statute, and for which there was no action at common law, the
declaration, like an indictment, must be framed on the statute or
statutes, stating not only the circumstances necessary to bring
the case within the meaning of the act, but also expressly count-
ing on it. McKay v. Woodle, 6 Ired., 352.
27. This rule does not embrace the case where a statute is-
simply remedial, giving an easier or cumulative remedy for a
wrong, for which there was a remedy at common law; therefore,
in an action for Avorrying, maiming and killing the hogs of the
plaintiff, while trespassing on the enclosed ground of the defen-
dant, the same not having a sufficient fence according to the act
of 1831, it is not a sufficient objection, that the declaration does
not refer to the 'statute, for the plaintiff had a remedy at the com-
mon law. Ibid. (See Rev. Code, ch. 48, sec. 3.)
28. A count for a forcible entry may be joined with one for an
assault and battery, in the same declaration. Flinn v. Anders, 9
Ired., 328. , ,. •
29. A declaration, commencing and concluding lu case, but m
the body of it setting forth a debt under a penal statute, seemsto
be sufficient without a demand for damages. But whether so or
not, according to the strict rules of pleading, a defect in this
particular is cured by the act of amendments, Ilev. Stat., ch. 3,
sec. 5. Brooks v. King,l Jones, 45. (x'C Rev. Code, ch. 3, sec. 5.)
30. A plaintiff, commencing by a warraiit, may, when the case
is taken to a higher court, file a declaration, setting forth his
cause of action more distinctly than it is set forth in his warrant,
PLEADING— III-IV. 965
takiniE^ care to make no departure fi-om it. Gerrish v. Johnson^ 1
Jones, 335.
31. The plaintiff, according to the ordinary practice among
the members of the bar, is entitled to the benefit of being con-
sidered as having filed his declaration, according to the facts as
set forth in a case agreed. Ibid.
32. According to the general nnderstanding of the profession,
when a plaintiff is not required to file a formal declaration the
court is to assume that his declaration contains all the averments
necessary to sustain his case. Jones v. Jones, 1 Jones, 495.
33. In a declaration for a deceit in the sale of a fishery, the
price paid for the property is not a material constituent of the
cause of action, and need not be proved as alleged. Pettijolin v.
Williams, 2 Jones, 33. ^ - J
34. _ One justice of a county cannot make a contract with his
associate justices in the official character, so as to enable them
to sustain a suit as "justices" of the county. Justices of Tyrrel
v. Sirmnons, 3 Jones, 187.
35. It seems that in the case just above stated, the contract
might have been alleged to have been made with the county as
a corporation, so as to have sustained a suit in the name of the
county. Ibid
_ 36. Where a constable, to relieve himself from liability for
failing to collect a judgment in his hands, paid it off to the
plaintiff therein, and then put it into the hands of another con-
stable to be collected for himself, it was held that, as there was
some evidence that the former constable had purchased the claim'
he might properly be the relator in a suit on the bon i < :f the de"
fendant for having failed to collect the money. Garr >w v Mdx.
ivell, 6 Jones, 529.
37. According to the general understanding of the profession,
where parties have gone to trial without a formal declaration,
the plaintiff is to be taken to have relied on one suited to the case
made by the proof Davis v. Goldston, 8 Jones, 28.
See (Bills of Exchange and Prgmissory Notes — Remedv on a
bill or note, Declaration, Pleadings and Evidence.) (Contract-
Construction of contracts and where an action will lie, 35.)
(Evidence— Parol evidence, when admissible.) (Executors
and Administrators— Of suits by executors and admin trators,
1-3-25-26-27.) (Mandamus and quo warranto, 7-8.) (Penal
statutes, 7-l(J--15.) (Pleading— Of pleas, replications and de-
murrers, 42.) (Process, 1-2-3-5-6-7-8-9-10-11.)) (Sheriff—
Of the liability of sheriffs and their sureties, 30.)
IV. OF PLEAS, REPLICATIONS AND DEMURRERS.
1. In aii action of trespass quare claus urn /regit, the defendant
966 PLEADING— IV.
may, under the plea of the general issue, give in evidence a
license. Cox v. Dove^ Mar., 43, (35 )
2. A plea since the last continuance is a Avaiver of all former
pleas, and an admission of the declaration. Greer v. Sheppard,
1 Hay., 96, (111,) S. P. McDaniel v. Tate, Ibid, 452, (520.) (This
rule is altered. Rev. Code, ch. 31, sec. 57, rule, 12.)
3. If, pending a suit against administrators, their letters be
repealed, they must plead \i p)uis darrein continuance at the first
term thereafter, else it will be too late. Bailey v. Cochrin, 1
Hay., 104, (120.)
4. A plea to the jurisdiction of the court under the act of 1793,
(Rev. Code, ch. 31, sec. 37,) is to be decided, as to the amount
for which the suit is brought, only by tlie writ and declaration.
AllenY. Stokes, 1 Hay., 122, (142,) S. P. McNauqhton v. Hunter,
Ibid, 4:54, (522.)
5. In an action of covenant, on the plea of "covenants per-
formed," the defendant cannot be permitted to say that there is
no such covenant as that set forth in the declaration. Anonymous,
1 Hay., 144, (166.)
6. If, in such case, the jury find a verdict upon matters not
s^ubmitted to them in the issues, it will be void as to such mat-
ters, while it may be good as to the issue to which it is respon-
sive. Ibid.
7. The court must l)e satisfied of the probable truth of a plea
since the last continuance, before they will permit it to be put
in. McNa.ughton v. Naylor, 1 Hay., 180, (207.)
8. A plea, subsequent to the term at which a former one was
put in, is not necessarily a plea since the last continuance. It
may have been added by permission or b_y consent, as an origi-
nal plea. Peak v. Folsome, 1 Hay., 181, (208.)
9. A general demurrer to a plea admits the fact pleaded, but
denies its sufficiency in law; a special demurer does not admit
the fact pleaded, but setting forth specially any informality or
defect in the plea, refers it to the court to decide on such infor-
mality or defect. Da.vison v. 3IuU, 1 Hay., 364, (417.)
10. An account against the plaintiff cannot be given in evi-
dence under the plea of payment. Evans v. Norris, 1 Hay.,
411, (473.)
11. A demurrer to a plea in abatement for want of an affidavit
is improper; the proper course is to move the court not to allow
the plea to be received. Corse v. Ledbetfer, 2 Hay., 15, (164.)
12. Where there is a demurrer to a plea, though the court is
about to overrule it, it may permit it to be withdrawn and a
replication entered. Keaisv. Shepard, 2 Hay., 218, (390.)
13. Where plaintiff' sued in his surname only, and there was
a plea in abatement, that his christian name was not inserted, a
replication, that the plaintiff" was as well known by his title of
PLEADING— IV. 967
courtesy as by his christian name, was held bad. Ldbat v. Etlis,
Tay., 148, (92.)
14. To a plea of the statute of limitations to debt on a bond by a
British subject, a replication of the treaty of peace of 1783 is
bad. Miller v. Gordon, Tay., 300, (130.)
15 Every plea has reference to the commencement of the ac-
tion, or at least to the time of the process served. Sinoot v.
Wright, Conf Rep., 374, (449.)
l(i. To an action of debt on the judgment of a court of record
in another state, nil debet is a bad plea; it should be nul tiel re^
record. Wade v. Wade, Conf Rep., 486, (538,) S P., Carter
V. Wilson, 1 Dev. and Bat., 362, Knight v. Wall, 2 Dev. and Bat.,
125.
17. The statute of limitations may be pleaded after is-
sue joined under peculiar circumstances, on payment of
full cost. Reed v. HeMer, Conf Rep., 488, (540.) S. R, Johnston
V. Williams, Ibid, 518, (505.) Hamilton v. Shepard, 2 C. L.
Rep. 471, (357.)
18. To the plea of set off there may be a double replication.
Holding v. Smith, 1 Murph., 154.
19. To debt on a bond, the plea of "illegal consideration " is
bad, as being too general to give notice of the particular illegal
consideration intended to be relied on as a defence Boyt v.
Cooper, 2 Murph., 286, S. C, 1 Car., L. R., 277, (28.)
20. A plea of alien enemy, entered at a term subsequent to
that at which the original pleas were entered, is not a good plea
in bar of the action generally, but only in bar of the further
maintenance of the suit, and being a plea since the last continu-
ance, shall not, since the act of 1796, amount to a relinquish-
ment of former pleas. Tearev. W/rite, 2 Car., L. R., 112, (210,)
(See Iiev. Code, ch. 31, sec. 57, Rule 12.)
21. In an action on a contract, whenever it appears in the
pleadings that there are other parties who ought to be plaintiffs,
it may be demurred to, or taken adsantage of by motion in arrest
of judgment or on a writ of error; but if the objection do not